September 1, 2008

Rehearing denied in National Wildlife Federation

By Rehearing denied in National Wildlife Federation

Last week the Ninth Circuit denied the State of Idaho's second petition for rehearing in National Wildlife Federation v. National Marine Fisheries Service.  The case involves the long-running litigation over federal hydropower projects in the Columbia River Basin.  The plaintiff-appellees have contended that the projects jeopardize the continued existence of a number of ESA-protected salmon populations.  Judge Redden of the District of Oregon has consistently agreed that the biological opinions authorizing the projects' continued operation are deeply flawed.  Last year, the Ninth Circuit affirmed Judge Redden's overtuning of the biological opinions, but shortly thereafter the Supreme Court issued National Association of Home Builders v. Defenders of Wildlife, which held that ESA Section 7 applies only to discretionary federal actions.  On the basis of NAHB, a number of NWF appellants moved for rehearing.  The Ninth Circuit denied that rehearing petition, determining that NAHB did not require a different result:  that case dealt with nondiscretionary projects, whereas NWF deals (pace the Ninth Circuit) with discretionary projects.  While all this was playing out at the appellate level, the Service, on remand from Judge Redden, issued a new biological opinion governing the hydropower projects.  Idaho therefore argued to the Ninth Circuit, in its second rehearing petition, that the case was now moot, and that the Circuit should vacate its earlier decision on the merits.  It was this request that the Ninth Circuit denied last week.

The case is far from over, however.  Shortly after the new biological opinion was issued, the NWF plaintiffs moved to amend their complaint to challenge the consultation documents.

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