213 



Because of the absence of an open scientific debate over 

 salmon recovery, the states and tribes have found themselves in 

 federal court, along with conservation and fishing groups. In 

 Idaho V. NMFS . a case where the States of Idaho, Oregon, and 

 Alaska, and four Indian Tribes challenged the federal biological 

 opinion for the hydro system. Judge Malcolm Marsh commented that 

 "the underlying root of the litigation problem is the feeling of 

 these parties that the federal government is simply not listening 

 to them." He overturned the biological opinion finding that "the 

 ESA does impose substantive obligations with respect to an 

 agency's consideration of significant information and data from 

 well-qualified scientists such as the fishery biologists from the 

 states and the tribes." 



After reviewing the record and affidavits in the case and 

 personally questioning the parties' scientists under oath. Judge 

 Marsh found that "Instead of looking for what can be done to 

 protect the species from jeopardy, NMFS and the action agencies 

 have narrowly focussed their attention on what the establishment 

 is capable of handling with minimal disruption." 



To address this legal shortcoming, the Judge set in motion a 

 series of discussions between the federal government on the one 

 hand and the states and tribes on the other. 



