## Facts

- Environmental and fishing organizations challenged National Marine Fisheries Service (NMFS) biological opinions (BiOps) issued under Endangered Species Act (ESA) § 7(a)(2) for operation of the Federal Columbia River Power System (FCRPS), a network of dams and reservoirs operated by the U.S. Army Corps of Engineers and the Bureau of Reclamation.
- The affected species included ESA-listed Snake River sockeye salmon (endangered) and Snake River spring/summer and fall chinook salmon (threatened), with designated critical habitat that included a mainstem migratory corridor.
- FCRPS operations harmed juvenile salmon during downstream migration through reduced flows, predation exposure, warm or degraded water, turbine injury, and bypass-related stress.
- To reduce migration mortality, the agencies used a smolt transportation program that collected juvenile salmon at dams, transported them by truck or barge around multiple dams, and released them downstream; plaintiffs argued the program carried its own risks and was being used to avoid addressing harms from dam operations.
- Plaintiffs sued in the District of Oregon challenging the 1993 and 1995 BiOps and their reasonable and prudent alternatives, alleging ESA and Administrative Procedure Act (APA) violations.
- The district court granted summary judgment to the federal defendants and intervenors and denied plaintiffs’ summary judgment motion.
- During the appeal, later agency actions and updated BiOps replaced aspects of the challenged opinions.

## Issues

1. Whether challenges to the 1993 and 1995 BiOps were moot because later BiOps and operational changes superseded them, leaving no effective relief available.
2. If any claims remained justiciable, whether NMFS and the action agencies violated ESA § 7(a)(2) and the APA by relying on smolt transportation and by inadequately addressing effects on listed salmon and designated critical habitat.

## Decision

- The Ninth Circuit held that most claims were moot because the challenged BiOps had been superseded and a decision would not affect current operations or provide effective relief.
- For the moot portions, the court vacated the district court’s judgment and remanded with instructions to dismiss those claims for lack of Article III jurisdiction.
- To the extent any discrete issues remained live, the court found no basis to reverse the district court’s summary judgment for the agencies.

## Legal Principles

- Article III limits federal courts to live cases or controversies; a claim is moot when subsequent events eliminate the possibility of effective judicial relief.
- When mootness arises on appeal through superseding agency action, vacatur of the lower court judgment is appropriate to prevent preclusive effects and to clear the way for future litigation over later actions.
- ESA § 7(a)(2) requires federal agencies to ensure actions they authorize, fund, or carry out are not likely to jeopardize listed species or destroy or adversely modify designated critical habitat; when an action “may affect” a listed species, consultation culminates in an NMFS BiOp.
- Remaining, non-moot challenges to an NMFS BiOp are reviewed under the APA; courts defer to the agency’s technical judgments when the agency considered relevant factors and articulated a rational connection between the record and its conclusions.

## Conclusion

The Ninth Circuit treated the appeal primarily as a jurisdictional dispute, dismissing most challenges to the 1993 and 1995 salmon BiOps as moot because later BiOps superseded them; it vacated the district court’s judgment as to moot claims and remanded to dismiss, while leaving intact the agencies’ victory on any remaining live issues under deferential APA review.


American Rivers v. Nat'l Marine Fisheries Serv., 126 F.3d 1118 (9th Cir. 1997)