Environmental Groups Make Case for BiOp'S Immediate Demiseby Bill Rudolph
NW Fishletter, June 13, 2003
Earthjustice lawyers filed their latest brief in US District Court in Oregon [National Wildlife Federation v. NMFS], arguing that the hydro BiOp should be set aside immediately because that action is routine after a biological opinion is declared invalid in cases involving the Endangered Species Act.
Federal Judge James Redden ruled last month that the Columbia Basin BiOp was invalid because it contained too many fish recovery actions, especially those outside the hydro system, that weren't reasonably certain to occur.
Since the feds relied on off-site mitigation to give dam operations a "no jeopardy" decision, Earthjustice and the other environmental groups involved in the suit said that what's left of the BiOp is a substantive violation of the ESA. They also argued that unless the BiOp is set aside, federal agencies could declare emergencies for "financial and other reasons" and suspend some fish-saving operations, putting the fish at further risk.
The environmental groups said that setting aside the BiOp wouldn't create chaos in the hydro system, as federal lawyers claim, because the agencies must abide by records of decision that use the BiOp as their foundation.
Federal attorneys have until June 13 to file their response. Then plaintiffs have another five days to reply. After that, Judge Redden will rule on the issue.
If the BiOp stays in effect, environmental groups cannot use the court to seek changes or additions to the plan. If the judge throws it out entirely, they may seek changes they think will better protect fish.
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