The state of Idaho this week asked Judge James A. Redden to dismiss a new challenge to the federal government's Columbia/Snake river salmon protection plan, saying the U.S. District Court does not have current jurisdiction in the lawsuit.

Thursday's Idaho brief says the "supplemental" complaint motion filed June 17 in district court improperly attempts to continue a case that is for now the province of the U.S. Court of Appeals for the Ninth Circuit. Proceedings related to an earlier district court decision are ongoing in the appellate court.

The Idaho filing cites Supreme Court rulings that emphasize a district court "must await receipt of the mandate before acting further on matters subject to the appeal." There are exceptions but none that apply to the ongoing litigation regarding Federal Columbia River Power system impacts on protected salmon and steelhead, according to the state.

"The Court of Appeals nevertheless has left no doubt that the jurisdiction-divestment rule precludes a litigant from attempting to amend a complaint whose dismissal is under appeal," according to the Idaho filing.

Legal circumstances "dictate either dismissal of NWF's motion or holding its determination in abeyance," according to Idaho's response to the National Wildlife Federation's filing last week in district court of an "unopposed motion for leave to file fourth supplemental complaint."

"First, the Court lacks authority to supersede the third supplemental complaint as requested by NWF. Jurisdiction over claims against NMFS in this action as currently pled lies exclusively in the Ninth Circuit," according to the Idaho filing.

"Application of this general principle is particularly warranted since Idaho's rehearing petition expressly seeks an order directing dismissal of the existing supplemental complaint against NMFS."

A coalition of fishing and conservation groups led by the NWF on June 17 filed the district motion to challenge the legal validity of the 2008 NOAA Fisheries Service (NMFS) biological opinion for the Federal Columbia River Power System. The BiOp said the federal hydro system does not jeopardize the survival of salmon and steelhead stocks that are listed under the Endangered Species Act.

The coalition said the litigation was needed "in order to address new circumstances and subsequent actions by defendant National Marine Fisheries Service," i.e. issuance of the new BiOp. Represented by Earthjustice, the groups asked Redden to declare the 2008 BiOp illegal under the ESA and require NOAA to reinitiate consultation with federal action agencies with the goal of producing a legal document.

The 2008 BiOp, released May 5, replaces the terms of a 2004 BiOp that was declared illegal under the ESA by Redden.

That decision was appealed by the federal government and Idaho, and Redden's decision was affirmed by the Ninth Circuit. Idaho later sought a rehearing in the Ninth Circuit based on what it felt was a precedent established in a different lawsuit that would apply in the NWF v NMFS case.

The Ninth Circuit denied the rehearing and in doing so issued an amended opinion April 24 that addressed the supposed precedent and otherwise left its previous verdict intact.

The amended Ninth Circuit opinion did allow new petitions to be filed in the case. And Idaho responded, asking that the appeals of Redden's decision be dismissed as moot, that the appellate panel's amended opinion be vacated and that Redden be ordered to vacate his final judgment of the 2004 BiOp.

"The 2008 biological opinion's issuance, in Idaho's view, not only moots the appellate proceedings -- which are directed to the now-superseded 2004 biological opinion -- but also requires vacatur relief," according to the brief filed Thursday in district court.

Responses to Idaho's petition in the Ninth Circuit are due June 30. The appellate court would then at some point in the future issue its decision.

"Settled law-of-the-case principles preclude this Court from acting inconsistently with an appellate mandate, and here a reasonable possibility exists that NWF asks it to do exactly that," Idaho's district court filing says.

"The NWF's motion for leave to file a fourth supplemental complaint should be dismissed on jurisdictional grounds or, alternatively, should be held in abeyance and determined after receipt of the Court of Appeals' mandate."

For more information on BiOp litigation go to www.salmonrecovery.gov