U.S. Ninth Circuit - The FindLaw 9th Circuit Court of Appeals Opinion Summaries Blog

Court: Government Must Protect Salmon, Steelhead

Migrating salmon will breathe easier this spring, thanks to a federal appeals court.

The U.S. Ninth Circuit Court of Appeal affirmed orders that government-operated dams release more water on the Columbia and Snake rivers to help endangered salmon and steelhead. It was a win for environmentalists who claim the dam operations have been killing off the species for years.

The decision in National Wildlife Federation v. National Marine Fisheries Service was also good news for the fish. At least until fishing season.

Dam System

It was the latest ruling in a 17-year court battle, and flowed from orders two years ago. Judge Michael Simon said the government had to do more to protect the fish.

Among other measures, he ordered the federal agencies to spill more water over the dams so that young fish could make it downstream. He also ordered the government to disclose any substantial investments that were made in the dam system.

The government, and a coalition of farms and industries, appealed. They argued that the orders were too broad, especially the orders to disclose investments.

The Ninth Circuit declined. The appeals panel said the orders were necessarily entwined.

"The effects on listed species of the current spill regime on listed species cannot be cleanly divorced from the effects of FCRPS dam operations taken as a whole," Judge Sidney Thomas wrote. "Listed species are exposed to the combined operations of the entire system."

"The Entire System"

Young fish would naturally swim downstream each spring during high water, but the dams have stemmed the flow. With the Ninth Circuit ruling, that water will flow again.

During the decades-long litigation, the government has claimed the dam operations have not "endangered" the fish. However, recent reports show that 13 species listed in the Columbia River are in a "precarious," "imperiled" or "perilous" state.

Based on those reports, the appeals court said the dam is the major cause of death among juvenile salmon migrating through the river basin. "Thus, there is a likelihood of irreparable harm to listed salmonids from the operation of the Federal Columbia River Power System dams as a whole," the appeals court said.

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