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Fishing, Conservation Groups Urge Judge to Toss BiOp Now by Barry Espenson Columbia Basin Bulletin - June 6, 2003

Fishing and conservation groups say that a federal Columbia/Snake river salmon protection plan could do more harm than good if left in place while its makers undertake a court-ordered revision to bring it into compliance with the Endangered Species Act and other statutes.

They also say that leaving a document in place that has been judged illegal is, quite simply, illegal.

The document in question is NOAA Fisheries' 2000 Federal Columbia River Power System biological opinion. The BiOp, which is scheduled to have a 10-year life, analyzes the biological effects of planned federal hydrosystem operations on 12 ESA-listed basin salmon and steelhead stocks. The BiOp declares that the operations jeopardize the survival of eight of those stocks, but it lines out a "reasonable and prudent alternative" -- 199 separate mitigation actions -- the agency says avoids jeopardizing the species.

U.S. District Court Judge James A. Redden in a May 7 order wrote that "NOAA's reliance on federal range-wide, off-site mitigation actions that have not undergone section 7 consultation and non-federal range-wide, off-site mitigation actions which are not reasonably certain to occur was improper and, as to eight of the salmon ESU's, the jeopardy opinion in the RPA is arbitrary and capricious."

During a May 16 hearing it was agreed that NOAA would have a year to rework the document to correct what the plaintiffs' attorneys said -- and the judge agreed -- were deficiencies in the plan.

The parties involved in lawsuit did not agree, however, on the BiOp's immediate fate. The plaintiffs want the document thrown out. The defendants want its prescriptions to continue in force during the remand.

The May 30 filing in Portland's U.S. District Court pushes the groups' argument that the court should "vacate, set aside, and enjoin the 2000 BiOp, RPA, and incidental take statement until NOAA complies with the law." The "take statement" issued with the BiOp says that hydrosystem related salmon and steelhead mortality will not jeopardize those stocks' survival. The federal government has until June 13 to respond to the plaintiffs' arguments, then the conservation and fishing groups' attorneys will have until June 20 to reply. A decision by Redden would follow.

The federal government is considering its options. Any decision regarding an appeal would likely be made after Redden's decision regarding the BiOp's status during the remand. The agencies feel the judge's concerns can be addressed.

"If he leaves it in place while we work on it, that would decrease the likelihood of an appeal," said Justice Department attorney Fred Disheroon. Judge Redden on Monday issued an order officially remanding the BiOp and starting that one-year clock ticking, though it said "defendant for good cause shown may request an extension of time to complete such proceedings if circumstances so require."

Redden will require that the federal government submit a status report to the court every three months. He said the court would hold a status conference within 10 days of the quarterly report submittals.

The June 2 order also opens a 60-day window during which the government can file an appeal of Redden's order declaring the BiOp illegal. NOAA Fisheries staff is studying the order and will make a recommendation to the Justice Department about whether it should be appealed.

The conservation and fishing groups' May 30 memorandum says that the federal Administrative Procedures Act states that federal agency actions, findings and conclusions found to be arbitrary and capricious must be set aside.

"In sum, the express language of the APA, the language and purpose of the ESA, and prior case law all make clear that the proper remedy where, as here, a court has determined a biological opinion is invalid, is to vacate and set aside the opinion," the memorandum concludes.

"Any other outcome in this case would pose a greater risk to salmon and steelhead by encouraging improper reliance on an invalid opinion as sufficient to protect ESA-listed species when NOAA, the action agencies and others all should be considering -- and taking -- additional steps to ensure the survival of these species while NOAA evaluates how to comply with the law." The action agencies are U.S. Army Corps of Engineers and Bureau of Reclamation, which operate the federal dams, and the Bonneville Power Administration, which markets the power produced in the hydrosystem.

That APA language and its relationship to the ESA have often been tested legally with the same result -- the actions were ordered set aside, according to the memorandum.

"In such situations, courts also regularly consider and grant additional equitable relief to protect listed species where plaintiffs seek such relief and the Court determines it is appropriate under the strict standards of the ESA," the memorandum said. The plaintiffs say that the federal government's contention -- made during the May 16 hearing -- that vacation of the BiOp would start a legal tug of war over hydrosystem spill and water management operations is unwarranted.

"The disruption that NOAA urges this Court to consider as a basis for leaving the 2000 BiOp in place apparently amounts to little more than a concern that the action agencies may be required to take additional measures to satisfy their legal duty to protect salmon and steelhead during a remand." The plaintiffs said it is premature to expect such requests for "additional relief."

The action agencies are not yet party to the lawsuit, though the plaintiffs on May 9 mailed the ESA-required 60-day notice of intent to sue the BPA, Bureau and the Corps. The letter says that because the BiOp is in violation of the ESA, the hydrosystem is now illegally "taking" ESA-listed salmon and steelhead. The groups ask the agencies" to discuss the significant ESA violations described herein and seek a mutually acceptable solution to them.."

One potential loophole in that APA section is that a regulation judged illegal, for example because of a minor technicality or procedural error, could be left in place if setting it aside would actually increase the risk of environmental harm. That opposite situation exists in this case where the flaws are profound, the plaintiffs argue.

". it (NOAA) is asking the Court to leave in place an invalid agency action that is fundamentally flawed under circumstances that could increase, rather than decrease, the risk of harm to listed species," the May 30 memorandum says.

"Indeed, in the absence of speculative federal, state, and private actions, what remains of the RPA is strikingly similar to the proposed action that NOAA concludes would jeopardize eight salmon and steelhead ESUs."

The plaintiffs used as an example of potential harm the emergency provisions in the BiOp that -- during 2001's drought and resulting low flows -- allowed curtailment of fish protection measures such as spill to passage juvenile fish at dams.

The BiOP "approves as part of the RPA a broad grant of discretion to the action agencies to declare emergencies for financial and other reasons and suspend FCRPS operations intended to provide some measure of protection to listed salmon and steelhead," the memo says

"Leaving the 2000 BiOp and RPA in place during a remand could allow the federal agencies to decide that similar emergency or other actions in the future would avoid jeopardy when there is no proper legal basis for such a conclusion."

The May 30 filing says that the action agencies, with or without a BiOp from the NOAA Fisheries, "have an independent and continuing duty to avoid any action that would jeopardize a listed species or destroy or adversely modify its critical habitat.."

"Indeed, an action agency cannot rely on a biological opinion as evidence that its actions avoid jeopardy and adverse modification if that opinion is faulty." The memorandum says those action agencies have a legal obligation to examine their actions and take steps to avoid jeopardy.

The action agencies are still legally bound to follow protective measures in the BiOp that were included in the individual agencies' "records of decision" -- agreements to implement the plan.

". the 2000 BiOp will continue to guide agency actions by acting as a floor for operations and measures that these agencies should consider as part of their section 7(a)(2) duty to 'insure' that their actions avoid jeopardy," according to the memorandum.

"Additionally, as noted above, these agencies have an independent duty under the ESA to identify and implement additional measures that are needed to avoid harm.."

Listed as plaintiffs in the lawsuit are: National Wildlife Federation, Idaho Wildlife Federation, Washington Wildlife Federation, Sierra Club, Trout Unlimited, Pacific Coast Federation of Fishermen's Associations, Institute for Fisheries Resources, Idaho Rivers United, Idaho Steelhead and Salmon United, the Northwest Sport Fishing Industry Association, Friends of the Earth, Salmon for All, Columbia Riverkeeper, American Rivers, Federation of Fly Fishers and Northwest Energy Coalition.

Listed as intervenor defendants are the state of Idaho, Northwest Irrigation Utilities, Public Power Council, Washington State Farm Bureau Federation, Franklin County Farm Bureau Federation, Grant County Farm Bureau Federation and Inland Ports and Navigation Group.

Plaintiffs' "Amici" are Oregon and the Umatilla, Warm Springs Tribes, Yakama and Nez Perce tribes. Defendant's Amici are the states of Montana and Washington.