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Redden Strikes Down Request to Add Upper Snake to Remand by Barry Espenson Columbia Basin Bulletin - December 19, 2003

A federal judge has rebuffed an attempt to bring upper Snake River federal water projects into consideration during a court-ordered re-evaluation of Columbia River federal hydrosystem impacts on salmon and steelhead.

As a result, the plaintiffs in the lawsuit promise to file a 60-day notice of intent to sue the federal government, saying operations of the Idaho irrigation projects don't adequately safeguard fish. The federal upper Snake River "biological opinion" is already under threat of lawsuit by irrigators who feel it holds their water ransom for fish flow augmentation.

The National Wildlife Federation and 12 other fishing and conservation groups filed a lawsuit in May 2001 charging that NOAA Fisheries 2000 Federal Columbia River Power System biological opinion violated the Endangered Species Act and Administrative Procedures Act. They said that NOAA's analysis of listed salmon and steelhead populations understates the risk of extinction and that the BiOp relied on non-hydro/non-harvest actions to avoid jeopardy that are speculative and voluntary.

Portland-based U.S. District Court Judge James A. Redden set the technical issues aside in ruling May 7 that NOAA's no-jeopardy conclusion was arbitrary and capricious because it relied on the implementation of future federal mitigation actions that had not undergone Section 7 consultation and non-federal off-site mitigations that are not reasonably certain to occur. In a later order he gave NOAA Fisheries until June 2, 2004 to rework the document.

In an opinion and order issued Friday, Redden denied an assertion by the plaintiffs that the federal "action" now under remand should have been more far-reaching.

Both sides have filed briefs regarding the need, or lack thereof, for NOAA to clarify how and where (action area) mitigation must take place to offset the action (FCRPS operations) that is jeopardizing species survival. The 2000 BiOp said that eight of 12 listed Columbia Basin salmon and steelhead stocks were jeopardized. Redden denied the request for clarification.

"We're pleased," said Fred Disheroon, Justice Department attorney. "The court obviously felt we were doing what we were supposed to be doing." The plaintiffs were disappointed, feeling both were important issues.

"At least for now he's not going to decide that issue," Earthjustice's Steve Mashuda said of Judge Redden's conclusion that it is inappropriate to bring the Upper Snake projects into the FCRPS remand process. That will prompt, potentially, a separate course of legal action.

Several of the conservation groups in August sent 60-day notice of intent to sue the Bureau of Reclamation over operations of the Upper Snake projects. The notice was withdrawn, however, when Idaho Sen. Mike Crapo urged the groups and representatives of other water user groups such as the irrigators to sit down and talk through their differences. No settlement was reached.

The defendants in the ongoing case informed Redden via a Dec. 9 letter that notice would be refiled.

"The purpose of this letter is to inform you on behalf of the groups identified above that they have determined, in order to protect their interests, that they should proceed with their challenge to the adequacy of the upper Snake basin biological opinion and BOR project operations," according to the Dec. 9 letter. "Accordingly, in the next several days they will resend a 60-day notice letter regarding the biological opinion and other violations of the ESA to the relevant federal agencies. They also are prepared to file a complaint under the Administrative Procedure Act seeking judicial review of the final biological opinion for the upper Snake basin projects issued by NOAA Fisheries."

"That's the one thing I can say today -- that we'll send the 60-day notice," Mashuda said. Redden, in a recent communication to the parties involved in the remand lawsuit, said the upper Snake issue would be discussed at the next scheduled gathering of lawyers.

In his Dec. 18 order, Redden said that "The court disagrees with plaintiffs that the scope of the federal agency action ever has been an issue in this case or requires clarification pursuant to the plaintiffs' motion." The issue only arose in October during a status conference with the judge when Earthjustice attorneys representing the plaintiffs expressed concern that the defendant was improperly limiting the scope of the "action" and "action area."

They feared, according to a transcript of that meeting, that the new BiOp would include "only those watersheds in which off-site mitigation activities required by the RPA may occur" and that "[s]ome areas that don't have off-site mitigation in them [are not considered to be part of the action area]…. We need to get clear, and can get clear here, on what the action area is for this remand consultation."

Biological opinions assess the impact of a particular federal action on listed species. The 2000 BiOp's reasonable and prudent alternative includes 199 hydrosystem and off-site measures that NOAA felt could be implemented to avoid jeopardizing survival of those species.

The action judged in the 2000 BiOp included federal projects on the Columbia River below Chief Joseph Dam and on the Snake River below Hells Canyon Dam, as well as Libby and Hungry Horse dams in Montana and Albeni Falls Dam in northern Idaho.

The plaintiffs contended that NOAA "repeatedly recognized" that the FCRPS and upper Snake projects are "a single course of federal action in multiple contexts… that plainly causes downstream effects on the amount of water available for salmon protection…." That view was reflected in a brief to the court last month arguing for an expanded "action" definition. The judge did not agree.

"… it would be inappropriate at this stage of this case to interject, in the manner sought by plaintiffs, the issues raised by the Upper Snake River biological opinion," Redden wrote. "The biological opinion issued on the Upper Snake Rive hydrosystem operations has been the subject of intense discussion to resolve disputes among entities that are not parties to this action, including unsuccessful mediation by a United States senator." The FCRPS' primary purpose is power generation with navigation, water storage and flood control additional functions. The Bureau of Reclamation's Upper Snake projects are primarily for irrigation and flood control.

The upper Snake River project operations "action" is judged in a separate biological opinion.

Redden pointed out that the court did not request, nor did any of the involved parties ask permission to raise new issues.

The judge also said that the request for a clarification of NOAA's action definition incorporates arguments of "their understanding of the science relating to the impact of the two hydropower systems on the timing and flow of water available to protect salmon in order to justify their contention that defendants' segregation of federal agency actions is improper."

That contravenes a previous order in which he says the court "does not intend to delve into the science during the remand period."

Redden also agreed with NOAA Fisheries scope of the "action area" -- the range across which mitigation actions could take place.

"… a review of the 2000 BiOp shows defendant did incorporate in the 2000 BiOp a Basinwide Salmon Recovery Strategy (BSRS) that recommended range-wide state, tribal, and private mitigation efforts to protect the 12 salmon ESUs directly and indirectly affected by the FCRPS," the Dec. 18 order says.

The judge had earlier ruled that the remand process must assure him that rangewide mitigation measures used in the jeopardy analysis must be "reasonably certain to occur."

The judge said he agreed with the federal government's contention that the plaintiffs "are seeking a definition of action area that is not required by and extends beyond the court's May 7, 2003 opinion. And again, Earthjustice' arguments supporting an expansion of the action area are justified by "their science"

"As noted above, the court does not intend to delve into science issues on remand. Moreover the Court expects the efforts on remand will be concentrated on complying with the courts' order, not expanding it."

"It appears at this stage of the remand period, defendant agrees with the court's conclusion regarding the action area to be considered on remand."

The Coalition for Idaho Water today hailed the decision.

“This decision confirms the common sense logic that we have tried to convey to the environmentalists from the very beginning. Idaho reservoirs are not linked to the downstream federal dams and going after Idaho water is a losing strategy,” said Coalition President Norm Semanko.

“This decision is nothing short of a total rejection of the litigation strategy employed by the environmental groups. They have openly targeted Idaho water by trying to link Idaho projects to Columbia River salmon recovery issues. That tactic has now been roundly rejected. With this ruling, it is time for these groups and their attorneys to rethink their strategy, abandon their misguided attempts to seize control of Idaho's water, and become part of the solution, rather than part of the problem,” Semanko added.

The Coalition for Idaho Water is composed of more than 45 groups representing agricultural, industrial and commercial water users, as well as Idaho's counties and cities.

The full ruling can be found at: www.iwua.org/Redden%20Area%20Decision.pdf