Columbia Snake River Irrigators Ass'n v. National Wildlife Federation

MEMORANDUM *

The Columbia Snake River Irrigators Association and Eastern Oregon Irrigators Association (collectively “Irrigators”) appeal various orders of the district court. We affirm. Because the history of this litigation is familiar to the parties, we will not recount it here.

I

The district court properly held that the National Marine Fisheries Services (“NMFS”) — now known as NOAA Fisheries — did not err by including future tribal and state-regulated fish harvest in the environmental baseline for its November 30, 2004, Biological Opinion (“2004 BiOp”) on the effects of Federal Columbia River Power System (“FCRPS”) operations on salmon and steelhead listed under the Endangered Species Act. 2 NMFS properly found that, although difficult to quantify, tribal treaty fishing rights were present effects of past federal actions that must be included in the environmental baseline. See 50 C.F.R. § 402.02 . To quantify those rights and add them to the environmental baseline, NMFS reasonably looked to current harvest levels and assumed that future harvests would be the same.

Similarly, NMFS was within its discretion to find that state-regulated harvests were reasonably certain to…