JURIST - Paper Chase: Ninth Circuit holds Bush salmon plan violates Endangered Species Act

[JURIST] The US Court of Appeals for the Ninth Circuit [official website] has ruled [opinion, PDF] that a Bush administration plan to protect salmon and steelhead near hydroelectric dams in the Columbia River Basin [USGS backgrounder] violated the Endangered Species Act (ESA) [text; EPA summary]. Monday's unanimous decision by a three-judge panel affirmed decisions by an Oregon district court in 2005 [JURIST report] and 2006 [opinion, PDF]. The Ninth Circuit held that the 2004 plan, called a biological opinion [US Interior Dep't materials], "contained structural flaws that rendered it incompatible with the ESA." On behalf of the panel, Circuit Judge Sydney R. Thomas wrote that under the administration's approach,

a listed species could be gradually destroyed, so long as each step on the path to destruction is sufficiently modest. This type of slow slide into oblivion is one of the very ills the ESA seeks to prevent.

The court also upheld the district court's order that NOAA Fisheries [official website] and other federal agencies collaborate with the states of Idaho, Montana, Oregon and Washington, as well as several Native American tribes, to devise a new plan.

Responding to the decision, federal officials said [press release] they hope "collaboration will increase the likelihood that the final biological opinion will not only protect salmon but will have broad regional support as well." Steve Mashuda, an Earthjustice attorney representing the plaintiff groups praised the decision [press release], calling it "a strong message to the Administration that it cannot ignore the requirements of the ESA." AP has more. From Portland, the Oregonian has local coverage.

This report was prepared in partnership with the Pittsburgh Journal of Environmental and Public Health Law.