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Wild Fish Conservancy v. Jewell

United States Court of Appeals, Ninth Circuit

September 11, 2013

Wild Fish Conservancy and Harriet S. Bullitt, Plaintiffs-Appellants,
v.
Sally Jewell [*], in her official capacity as Secretary of the United States Department of the Interior; U.S. Department of the Interior; Sam D. Hamilton, in his official capacity as Director of the United States Fish and Wildlife Service; U.S. Fish & Wildlife Service; Dave Irving, in his official capacity as Leavenworth National Fish Hatchery Complex Manager; Michael L. Connor, in his official capacity as the Commissioner of the Bureau of Reclamation; United States Bureau of Reclamation, Defendants-Appellees.

Argued and Submitted May 7, 2013 —Seattle, Washington

Appeal from the United States District Court for the Eastern District of Washington Lonny R. Suko, District Judge, Presiding D.C. No. 2:09-cv-00206-LRS

Brian A. Knutsen (argued) and Richard A. Smith, Smith & Lowney, PLLC, Seattle, Washington, for Plaintiffs-Appellants.

Charles R. Shockey, David C. Shilton, and Robert P. Stockman (argued), United States Department of Justice, Washington, D.C., Defendants-Appellees.

Before: Sidney R. Thomas and Jacqueline H. Nguyen, Circuit Judges, and Raymond J. Dearie, Senior District Judge. [**]

SUMMARY [***]

Standing / Jurisdiction

The panel dismissed an action brought by the Wild Fish Conservancy challenging the United States' diversion of water from Icicle Creek, a tributary of the Wenatchee River and the Columbia River, to the Leavenworth National Fish Hatchery.

The panel held that the Conservancy lacked prudential standing to bring an Administrative Procedure Act challenge alleging that the federal defendants violated section 8 of the Reclamation Act of 1902 by failing to comply with the Washington water code's permit requirement. The panel also held that it lacked jurisdiction over the Conservancy's claim that the federal defendants violated Washington's fishway law, Wash. Rev. Code § 77.57.030(1), by failing to submit fishway plans to the Department of Fish & Wildlife and by failing to maintain durable and efficient fishways across hatchery structures, because these requirements were not incorporated into section 8 of the Reclamation Act. Finally, the panel held that it lacked jurisdiction over the Conservancy's claim that the Secretary of the United States Department of Interior's failure to supply Hatchery fishways with adequate water violated the Reclamation Act, because that claim did not challenge a final agency action and consequently was not reviewable under the Administrative Procedure Act.

OPINION

THOMAS, Circuit Judge

The historian Donald Worster described the Columbia River as the river that died and was reborn as money.[1] The Columbia River Basin was once home to one of the world's largest salmon runs, but over the course of the twentieth century the mainstem Columbia and its tributaries were radically re-engineered to become the most hydroelectrically developed river system in the world, incorporating more than one hundred and fifty dams. Nw. Res. Info. Ctr., Inc. v. Nw. Power Planning Council, 35 F.3d 1371, 1375 (9th Cir. 1994). In combination with deforestation, over-fishing, irrigated agriculture, grazing, mining, and urbanization, the hydropower system reduced native salmon and steelhead populations from levels of mythic abundance to the brink of extinction. Id. at 1375–76.

This appeal concerns the control of water necessary to sustain native fish populations in Icicle Creek, a tributary of the Wenatchee River, which is itself a tributary of the Columbia. The Wild Fish Conservancy and Harriet S. Bullitt (collectively, "the Conservancy") allege that the United States is improperly diverting water from Icicle Creek to the Leavenworth National Fish Hatchery (the "Hatchery") and otherwise violating Washington state law. We conclude that the Conservancy lacks prudential standing to bring its claim that the Hatchery operation violates the Washington water code, and that we lack jurisdiction to consider the Convervancy's other claims because they either do not challenge final agency action or rest on provisions of Washington law that are not incorporated into federal reclamation law. Therefore, on de novo review, [2] we dismiss this action.[3]

I

Congress authorized construction of the Hatchery to mitigate the adverse impact of the Grand Coulee Dam on native fish in the Columbia River Basin. The Conservancy claims that the Hatchery is subject to section 8 of the Reclamation Act of 1902 ("section 8"), which requires that federal reclamation projects operate in compliance with state water law. 43 U.S.C. ยง 383. According to the Conservancy, the United States Secretary of the Interior and subordinate officials responsible for operating the Hatchery (collectively, the "Federal Defendants") violate section 8 by diverting water from Icicle Creek without a permit required by the Washington water code, Wash. ...


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