Beyond the Parity Promise: Struggling to Save Salmon in the Mid-1990s
Michael A. Schoessler, J.D.1996, Lewis & Clark Law School. R. Christopher Beckwith, J.D. 1996, Lewis & Clark Law School.
This article, part of a series of articles on the effect of the Northwest Power Act (NPA) on restoring Columbia Basin salmon runs adversely affect by Columbia Basin dam building and operations, analyzes the 1994 amendments to the Columbia Basin Fish and Wildlife Program. Earlier articles appear at: http://ssrn.com/abstract=2955344; http://ssrn.com/abstract=2956987; http://ssrn.com/abstract=2977038; http://ssrn.com/abstract=2972390. This analysis examines the effect of an important Ninth Circuit decision in Northwest Information Center v. Northwest Power Planning Council, which ruled that the Council violated the NPA in approving 1991 program amendments without giving sufficient deference to the recommendations of the region's fishery agencies and Indian tribes. The article, however, goes beyond the NPA to consider the effect of the Endangered Species Act (ESA), as several salmon species were listed for protection under the ESA in the early 1990s, and district court ruled that in making jeopardy decisions under the statute the National Marine Fisheries Service violated the ESA in selecting an arbitrary baseline from which to judge improvements in run sizes and a similarly faulty system of life-cycle modeling. The judge called for a "major overhaul" in the agency's approach to implementing the ESA. Among other assessments, the article contrasts the approach to salmon restoration under the NPA and ESA that endorsed by the region's Indian tribes in their plan, the Spirit of the Salmon, finding the tribal approach to be superior. Assessing the 1994 amendments to the Columbia Basin program and the 1994-98 biological opinion under the ESA, the article concludes that neither satisfied the "major overhaul" called for by federal district judge Malcolm Marsh.
Michael Blumm, Michael Schoessler & R. C. Beckwith,
Beyond the Parity Promise: Struggling to Save Salmon in the Mid-1990s,
Available at: https://lawcommons.lclark.edu/faculty_articles/85