American Rivers v. National Marine Fisheries Service

Environmental and commercial fishing organizations 1 (collectively “American Rivers”), appeal the district court’s denial of their motion for summary judgment and its grant of defendants’ cross-motion for summary judgment. The defendants are the National Marine Fisheries Service (“NMFS”) and the federal agencies 2 that operate the Federal Columbia River Power System (“River Power System”). American Rivers contends that the federal agencies violated § 7(a)(2) of the Endangered Species Act, 16 U.S.C. § 1536 (a)(2), because the operation of the River Power System jeopardizes the existence of the Snake River salmon and adversely modifies the salmon’s critical habitat. Specifically, American Rivers challenges the federal agencies’ decision to use transportation measures-moving juvenile salmon downstream in trucks and barges-to avoid a determination that the operation of the River Power System jeopardizes the existence of the salmon.

I. BACKGROUND

A. Factual Background

1. Basic Facts

“Salmon and hydropower are the two great natural resources of the Columbia River Basin.” Northwest Resource Info. Ctr., Inc. v. Northwest Power Planning Council, 35 F.3d 1371 , 1375 (9th Cir.1994),…