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Judge Rules BiOp Stays in Place During One-Year Revision by Barry Espenson Columbia Basin Bulletin - June 27, 2003

The plaintiffs in a lawsuit that successfully challenged a federal Columbia River basin salmon protection plan on Wednesday failed in their attempt to have the strategy taken off the books while its legal shortcomings are addressed.

In a terse order, U.S. District Court James A. Redden denied a motion by conservation and fishing groups to have NOAA Fisheries' 2000 Federal Columbia River Power System biological opinion vacated. Redden's three-paragraph civil minutes did not explain the rationale for his decision, though did promise an opinion by July 3.

Redden in a May 7 opinion said " 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."

The 2000 BiOp said that proposed hydrosystem operations jeopardized the survival of eight of the 12 Columbia/Snake river basin salmon and steelhead stocks. The NOAA document also described 199 separate actions that could be taken within the hydrosystem and off-site to avoid jeopardy. It also issues an "incidental take" permit that provides dam operators with an ESA exemption for a certain level of level of hydrosystem-caused mortality to those listed stocks.

At a May 16 hearing, attorneys for the various parties to the lawsuit agreed that a year would be allowed for the defendant, NOAA Fisheries, to address Redden's concerns. Federal attorneys, supported by Northwest states and river user groups, have urged the judge to leave the BiOp in effect during the remand. To settle the argument about whether the document should be vacated, Redden ordered a series of briefings starting with the attorneys for the conservation and fishing groups, and lower Columbia treaty tribes that have joined as intervenors or amici.

The defendants, other federal agencies, states and user groups responded June 13, saying biological benefits and legal and economic stability provided by BiOp should be maintained during the remand, despite the flaws. They said that the vacation of the BiOp could potentially release a flood of legal actions seeking to change the way the hydrosystem is operated, potentially disrupting a system designed to both improve salmon survivals and provide economic benefit.

They said the BiOp can and will be fixed, and argued that the law does allow the plan to remain in place during the remand.

The June 13 federal brief also says there is no urgent reason to vacate the BiOp.

"The 2000 biological opinion was based on the fact that the salmon were not in any immediate peril of extinction and that there was time to allow for protective measures set forth in the reasonable and prudent alternative ("RPA") to take effect. In addition, the salmon have been experiencing record returns such that they are doing even better than the 2000 biological opinion predicted.

"Given the improved status of the stocks, there is simply no need for the Court to set aside the opinion on remand creating a great deal of uncertainty and disruption throughout the Pacific Northwest.

"There can be no serious question that setting aside the opinion will have a disruptive effect," the federal brief said. The federal government is considering whether to appeal Redden's May 7 declaration that the BiOp is illegal.

In their June 20 response, the plaintiffs' attorneys say that, since the basis for the no jeopardy opinion and take statement are improper, the document should be invalidated.

That is "necessary because only such a step will allow full and adequate protection of Columbia basin salmon and steelhead in accordance with the procedural and substantive requirements of the Endangered Species Act," according to the June 20 memorandum filed by attorneys for the lead plaintiff, the National Wildlife Federation.

The coalition brief said the request to leave the BiOp in place is "a self-serving and incorrect attempt to limit their responsibilities under the ESA, as well as the responsibilities of the federal action agencies who are not parties to this case, to no more than continued implementation of the inadequate RPA." The RPA is the list of 199 actions in the BiOp.

"NWF has stated clearly and unambiguously that it may institute further proceedings in order to seek relief for violations of the ESA against the federal action agencies if they do not take steps to fully protect salmon and steelhead from harm while they decide how to comply with the ESA," according to the June 20 plaintiffs' response. The plaintiffs' attorneys have said that relief may include changes in hydro operations.

The plaintiffs' brief stressed that "the inadequate 2000 BiOp and RPA cannot serve as a shield to protect the federal action agencies from their legal duties under the ESA and that these agencies must take any additional steps that may be necessary to avoid harm to salmon and steelhead" during the remand. The action agencies are the federal dam operators -- the U.S. Army Corps of Engineers and Bureau of Reclamation -- and the Bonneville Power Administration, which markets power from the hydrosytem.

The coalition has issued the ESA-required 60-day notice that a lawsuit will be filed against the action agencies unless they take additional steps necessary to avoid jeopardy.

Redden's order of this week said he "will discuss his expectations on remand, including NMFS's interaction with the affected federal agencies re: consultations and with the sovereign parties re: offsite mitigation."

The judge also said that "a status conference will be scheduled to discuss a road map for proceedings on remand, including specific timetables for the activities that are to be undertaken and reported upon. The court will also seek and discuss constructive approaches offered by the parties."

The one-year remand clock began ticking June 2 when Redden officially granted the plaintiffs' request for summary judgment -- that the BiOp be declared illegal. In that order the judge said that NOAA Fisheries must report quarterly regarding its progress in addressing the "deficiencies the Court found in the 2000 BiOp.." Status conferences will be held within 10 days of the filing of each report.

In that same order regarding the summary judgment, the judge mapped out the briefing schedule regarding the BiOp set-aside or vacation issue.

"We're obviously pleased," Justice Department attorney Fred Disheroon of the Redden's most recent order. "We think he did the right thing."

The conservation and fishing groups have asked the court to formally set aside the plan because they were concerned that keeping the plan "on the books" might discourage the administration from taking the additional steps needed to protect salmon until a new opinion is prepared, or might be used incorrectly to justify taking harmful actions, according to a Thursday press release.

The press release said the groups wanted to avoid "a repeat of BPA's past declarations of power emergencies which suspended spill over the dams resulting in the worst in-river salmon survival since the fish were listed. These 'emergencies' are allowable under a loophole in the current plan that allows BPA to arbitrarily reduce needed water for fish."

"I'm not sure if we're disappointed or not yet," Earthjustice attorney Steve Mashuda said of Redden's denial. Earthjustice attorneys Mashuda and Todd True and Daniel Rohlf and Aaron Courtney of the Pacific Environmental Advocacy Center represent the 16 conservation and fishing groups.

"We don't want to speculate about what this means without having the full opinion from the court," said Mashuda. "But the Court has made clear that it will be keeping a very close eye on this process over the next 11 months. We'll have an opportunity to address any concerns and problems that arise during that process and quickly bring them to the Court's attention."

"The basic point is still the same," said Rob Masonis of American Rivers. "The administration has less than 11 months to actually get a new plan out on the river and the judge, salmon advocates and the people of the Northwest and nation will be watching that process closely. We urge this administration to take its obligation to rewrite this plan seriously. And to provide the opportunity for the public, the states and the tribes to fully participate in that process."

Allen Slickpoo Jr., chairman of the Columbia River Inter-Tribal Fish Commission and a member of the Nez Perce Tribe, said, "We're pleased Judge Redden wants to make clear his expectations of NMFS on its interactions with the tribes, which we've always said must improve."

N. Kathryn "Kat" Brigham, a member of the Umatilla Tribe's fish and wildlife committee, said the judge's decision doesn't endorse, excuse or validate the federal salmon plan.

"NMFS still improperly relies on future federal, state and private mitigation actions that aren't certain to occur," she said. "The old plan also still violates the Endangered Species Act."

Olney Patt Jr., CRITFC executive director, said federal officials must not be allowed to use Redden's ruling as an excuse to make "weak, piecemeal" changes to the biological opinion.

"This is not a product that needs tweaking. It needs a major overhaul," Patt said. "It would behoove the Bush Administration to start taking the judge's May 7 ruling seriously and not treat decisions like this as some perceived victory. The tribes aren't buying it."

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.