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Win by Losing

Some lawsuits fail in court but still accomplish their overall objective. One such case rescued the Sacramento River winter-run king salmon. Mike Sherwood, the lead attorney on the case, tells the story.

One day early in 1988 my telephone rang. It was Cindy Williams, a fish biologist and president of the Northern California-Nevada chapter of the American Fisheries Society. "We've got an emergency," she explained. "We're about to lose the Sacramento River winter-run chinook salmon." This used to be one of the most abundant and commercially valuable salmon runs on the west coast. Its numbers had declined from hundreds of thousands to a few thousand. I had been involved in some Endangered Species Act cases in Hawai'i and Williams was hoping I could help.

The magnificent winter-run king or chinook salmon, which can grow to five feet in length and weigh as much as 130 pounds, had been devastated by the construction of Shasta Dam, which cut off access to the fishes' spawning grounds in the high-altitude tributaries of the Sacramento River. The salmon were thus forced to spawn downstream from the dam where conditions were far from ideal. Among other things, water released from the dam was often too warm for eggs and baby fish to survive. Pumps that sucked irrigation water from the river worsened the problem, often irrigating rice fields with young salmon, which perished.

Williams had asked the National Marine Fisheries Service, the responsible agency, to lean on the Bureau of Reclamation, which operates the dam, to modify operations to help the salmon. The fisheries agency refused, saying it was powerless. So she came to us. "Can we get help via the Endangered Species Act?" she asked. I said I'd see what we could do to help.

It wasn't going to be easy. Courts are notoriously loath to second-guess natural-resources agencies that employ scientists who are supposed to safeguard wildlife and other resources. Still, the situation seemed dire enough that we decided to give it a try, and later that year we filed the first suit ever asking a court to order the listing of an imperiled species under the Endangered Species Act. Cindy Williams's organization was the plaintiff.

We thought we had a strong case, but it was too novel and ahead of its time for the judge, who turned us down. So we took an appeal to the Ninth Circuit Court of Appeals. We were confident that we'd prevail on appeal -- the situation was a genuine emergency. Then fate intervened. While the appeal was pending, the number of spawning fish plunged to 190. The fisheries agency, which, thanks to the lawsuit, had finally begun to pay attention to this looming catastrophe, got the message. It voluntarily invoked its rarely used emergency powers and put the winter-run on the endangered species list. This was what we were asking for, and so we dropped the suit.

As a result of the listing, major changes were made on and near the river. At considerable expense Shasta Dam was retrofitted to release water cold enough for baby salmon to survive in. The Red Bluff diversion dam was ordered left open at the times most critical to salmon migration. The Iron Mountain Mine, which contributed acid and other lethal pollution to the river, was cleaned up. Two irrigation districts installed long-overdue fish screens. The winter-run's numbers began slowly to rebound.

As a direct result of all this, the winter-run is on the mend—up to more than 15,000 in 2004. This is miles from their historic abundance but a big step in the right direction.

So, we won a dramatic change of prospect for the winter-run chinook even though we lost the case in court. Suing to gain federal protection for disappearing species has now become commonplace and has succeeded scores of time.