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Enviros Promise Motion to Stop Summer Spill Proposal by Bill Rudolph NW Fishletter, April 21, 2004

At the April 16 meeting to update federal Judge James Redden on the BiOp remand process, Earthjustice attorney Todd True said he would file a motion in Redden's court to stop any attempt by action agencies to cut spill this summer. If NOAA Fisheries OKs the spill proposal, True promised a motion within a week to10 days. He promised even more litigation if federal agencies stay on track with a tentative proposal to change the way they will analyze dam operations and fish survival as they re-write the old hydro BiOp.

BPA customers were not surprised by the threat, said PNGC Power's Scott Corwin. "This was an expected part of the process," he said. "But, the federal agencies are on strong legal ground. They are finding better ways to do more for fish just as the biological opinion outlined."

Of the summer spill issue, Judge Redden said he had "read a lot in the newspapers," including a recent op-ed piece in The Oregonian that supported BPA's proposal by the judge's brother-in-law Wayne Thompson, a retired associate editor of that newspaper. Redden told the steering group that what Thompson wrote about baseball and basketball, "you could take to the bank," but when he wrote about fish? The judge left it at that.

Attorney Tim Weaver, representing the Yakama Tribes, asked if NOAA was also judging effects of the proposal on non-listed fish, and suggested further litigation may be brought in "other fora." Some participants thought Weaver meant he would bring up the spill issue in the ongoing U.S. v Oregon process, presided over by federal Judge Garr King.

Weaver also complained to Redden about the collaboration over the BiOp rewrite between the federal defendants and the state and tribal agencies ordered by the judge. The tribes and environmental groups were unhappy that NOAA Fisheries recently announced that it might change the environmental baseline in the new BiOp to include dam operations in its base-case analysis, which has the potential for reducing estimated adverse impacts of the hydro system on ESA-listed populations.

Justice Department lawyer Fred Disheroon said the plaintiffs were mis-characterizing the situation. He said NOAA was not developing a new jeopardy standard. "The question is how you apply the standard," Disheroon explained.

But tribal attorneys called the new wrinkle a "sea-change."

"There ain't a whole lot to collaborate about," said Weaver, who softened his criticism by admitting that he didn't know if that perception was correct, "but its the way it looks from our side of the table."

Others, Like Clay Smith from Idaho's Attorney General's Office, advised the judge to keep on track with the meeting agenda and not worry about state and tribal concerns.

Earthjustice attorney Todd True called the situation "a fundamental fork in the road," noting there was "not a chance in the world the federal family will change their approach." True said if plaintiffs end up with fundamental disagreement over the new framework, "then collaboration has run its course."

Judge Redden said he hoped the parties could work around these differences. Others, like attorney Jay Waldron, representing defendant-intervenor Inland Ports Association, said there may be differences among parties over the framework proposal, but the tribes have provided thoughtful analysis in other collaborative efforts taking place to discuss hatcheries, harvest, habitat, and estuary effects.

Federal attorney Disheroon said he totally disagreed with True's characterization of the talks, noting that the feds have made no final decision on the way they will analyze effects of the dams. "We think collaboration is working," he told the group.

True didn't see it that way. "The government has made a choice that will lead us into court on the next biological opinion."

Oregon representative David Leith said his state would stay in the collaborative process, though the government delivered a "bombshell" when it proposed its new analysis and "threatens to render irrelevant scientific issues we have been working on."

Judge Redden issued a continuance on the federal motion to extend a June deadline for completing the new BiOp, to allow for the ongoing collaboration between feds and co-managers over scientific issues, and counseled all parties to stay the course, hoping they could work around their differences over the new analyses.

NOAA Fisheries submitted its third status update on April 1, suggesting that a draft BiOp could be out by August if the collaborative effort winds up by the end of May. The update said NOAA would also be willing to give states and tribes a second round of collaboration after the draft comes out, which they said would allow the final BiOp to be issued in early November. The action agencies promised to provide NOAA Fisheries with a revised implementation plan for intended 2004 and 2004-2008 operations. The update says these revised plans will also serve to "identify the appropriate proposed action for the purposes of this remand, so that NOAA would analyze the effect of those proposed operations instead of that proposed in the 1999 Biological Assessment."