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Judge Grants Extension Allowing Plaintiffs to Answer Latest Briefs Defending Salmon BiOP by Staff Columbia Basin Bulletin, January 7, 2011

The Nez Perce Tribe, a longtime proponent of breaching lower Snake River as a means of improving fish survival, in its request accused the RiverPartners and IPNG briefs if "augmenting arguments, incorrectly, with assertions that lower Snake dam breaching is legally impossible and therefore entirely infeasible as a contingency."

An extension this week was granted in the long-running legal debate over the adequacy of the government's plan for improving conditions for salmon and steelhead that negotiate the Federal Columbia River Power System.

A coalition of fishing and conservation groups represented by Earthjustice, the state of Oregon and the Nez Perce Tribe on Monday asked U.S. District Court Judge James A. Redden that they be allowed to respond to a huge heap of documents (180 pages plus declarations and other exhibits, by their reckoning) filed Dec. 23 by the U.S. Justice Department and aligned parties.

The Dec. 23 filings defended the legality of NOAA Fisheries Service's May 2010 supplemental FCRPS biological opinion, which outlines actions (dam passage improvements, habitat restoration, etc.) in its "reasonable and prudent alternative" that federal agencies say mitigate for negative impacts from dams on Columbia-Snake river salmon and steelhead stocks that are listed under the Endangered Species Act.

Briefing in the lawsuit began shortly after NOAA Fisheries released in May of 2008 its FCRPS BiOp, which was later absorbed into the 2010 supplement. Both Earthjustice and Oregon updated their complaints this fall to address the supplemental BiOp.

Redden ordered that briefing on the supplement focus on changes to the BiOp from 2008 to 2010 and the submitted administrative record, which includes documents and other materials considered in constructing the new BiOp.

He set Oct. 29 as the filing deadline for the plaintiffs in the case to submit motions for summary judgment. They did file, asking that the judge declare the BiOp illegal. The plaintiffs claim, among other things, that the strategy's biological jeopardy analysis - the calculation of the risked faced by the species and how BiOp actions would mitigate that risk -- is flawed. They allege that the BiOp depends on habitat actions that are not certain to be implemented and that the salmon survival benefits stemming from habitat improvements are also uncertain.

The federal agencies involved as defendants - NOAA Fisheries, the U.S. Army Corps of Engineers and the Bureau of Reclamation - were allowed until Dec. 23 to file opposition to the plaintiffs summary judgment request and summary judgments of their own asking that the lawsuit be rejected. Also filing defenses of the BiOp were the states of Idaho, Montana and Washington (joint brief), the Umatilla, Warm Springs and Yakama tribes (joint brief), the Colville Tribes, the Kootenai Tribe of Idaho and the Salish and Kootenai Tribes (joint brief), the Inland Ports and Navigation Group and RiverPartners.

(For more information see CBB, Dec. 23, 2010 "BiOp Litigation: Briefs Filed Contending Agencies' Salmon Plan Legally, Scientifically Valid" and CBB, Nov. 5, 2010, "BiOp Challengers: 2010 Supplemental Salmon BiOp 'Adds Nothing Of Legal Significance' )

Judge Redden on Wednesday approved requests from the coalition, the state of Oregon and the Nez Perce Tribe that they be allowed to file responses to legal briefs filed Dec. 23 by the federal government and others. The judge gave them until Jan. 21 to filed reply briefs of no more than 20 pages. The federal defendants and allied parties would then have until Feb. 11 to file "surreply" briefs of no more than 20 pages.

Redden had said in a scheduling order that briefing on the supplemental BiOp would end with the Dec. 23 filings, after which he intended to schedule oral arguments. But the plaintiffs and Nez Perce Tribe said the latest briefs from the defense ventured into uncharted waters.

"NWF seeks leave to file a combined reply/response memorandum of no more than 35 pages in accordance with the Local Rules in order to address new and augmented arguments by federal defendants and others, some based on cases not previously cited and/or decided since NWF filed its supplemental motion on October 29, 2010, as well as significant mischaracterizations in the memoranda filed by these parties," according to the request filed Monday by Earthjustice. The coalition is led by the National Wildlife Federation.

The brief's two pages of text regarding the defendants' and others' Dec. 23 filings were filled with descriptive phrases that started with words such as "significant mischaracterizations," "incorrectly arguing," "inexplicably claiming," and "misstating NWF's position on other issues..." As an example Northwest RiverPartners' memo says that NWF's 'overarching desire... has been to reduce or eliminate hydropower general' and that dams are needed to save salmon from the impacts of global warming, according to Earthjustice's brief.

The Oregon request filed Monday says the state, in additional briefing, wants to focus on portions of the federal defendants' Dec. 23 brief that "purport to address the state's arguments, including assertions that Oregon allegedly:

1. "failed to reconcile its arguments regarding declining species status with evidence of increased average abundance over the last ten years;
2. mischaracterized NOAA's analysis of the new base-period data;
3. ignored NOAA's reliance on "density dependence" as an explanation for the new data;
4. reached "legally and factually" incorrect conclusions regarding the prospective analysis; and
5. misinterpreted the evidence regarding the availability and effectiveness of Intensively Monitored Watershed projects to monitor survival improvements."

The Nez Perce Tribe, a longtime proponent of breaching lower Snake River as a means of improving fish survival, in its request accused the RiverPartners and IPNG briefs if "augmenting arguments, incorrectly, with assertions that lower Snake dam breaching is legally impossible and therefore entirely infeasible as a contingency."

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