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Judge Rules Against BiOp; says 'Arbitrary and Capricious' by Barry Espenson Columbia Basin Bulletin - May 9, 2003

A Portland-based U.S. District Court judge on Tuesday ruled that a federal salmon recovery strategy adopted in December 2000 is illegal because it relies improperly on actions that are not "reasonably certain to occur."

Judge James A. Redden said that that reliance on certain federal and non-federal activities results in a false assessment that federal Columbia/Snake river hydrosystem dams can be operated as planned without jeopardizing the existence of salmon and steelhead stocks listed under the Endangered Species Act.

"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," Redden wrote in his opinion and order.

ESA Section 7 establishes an interagency consultation process to assist federal agencies in complying with their responsibility to avoid jeopardy to listed species or destruction or adverse modification of critical habitat. Under this process, a federal agency proposing an action that "may affect" a listed species, including salmon, must prepare and provide NMFS with a "biological assessment" of the proposed action's effects.

Judge Redden said NOAA also erred by defining the "action area" affected the BiOp as the hydrosystem corridor, then using a broader range in making its jeopardy calculation.

"If the proposed range-wide, off-site mitigation actions are not, in reality, part of the action area, they should not have been included within the 'cumulative effects' analysis of the 2000BiOp," Redden wrote. "However, it is apparent that NOAA included them as part of the RPA in the 2000BiOp to justify its no-jeopardy conclusion. The BSRS, which includes many of those mitigation actions, acknowledges their uncertainty."

Redden then quoted a passage from the Basinwide Salmon Recovery Strategy that says it has a "reasonable chance" of being implemented.

"The problem with this analysis is that the regulatory standard is not 'reasonable chance" but 'reasonable certainty,' " Redden wrote.

The lawsuit against NOAA Fisheries was filed in May 2001 by a coalition of fishing and conservation groups. It claims the 2000 NMFS (now known as NOAA Fisheries) biological opinion violates the ESA and Administrative Procedures Act by concluding that a mixture of passage improvements at the hydro projects and reservoirs and improvements to habitat and to harvest and hatchery regimes would improve fish survival to the point those eight stocks would not go extinct. The BiOp judged that hydrosystem operations would jeopardize the survival of eight of 12 listed Columbia Basin stocks, then prescribed actions in a "Reasonable and Prudent Alternative" or RPA that would mitigate for hydrosystem impacts.

The BiOp strategy has been described as an "aggressive, non-breach" approach to improving salmon survival. Most if not all of the groups signed on as plaintiffs have pushed for the additional measures of removing four dams on the lower Snake River to ease fish passage and provide additional habitat.

The lawsuit says NMFS analysis" understates the risk of extinction and depends on non-hydro/non-harvest actions to avoid jeopardy that are speculative and voluntary. The defendants said that "offsite" habitat improvements called for in a "Basinwide Salmon Recovery Strategy" document released simultaneously with the BiOp erroneously include state, tribal and private actions in its analysis of potential salmon survival improvements.

NOAA had contended that the 2000 BiOp properly considered future mitigation activities and said that its jeopardy rationale and analysis applied the best science available.

The plaintiff's request for summary judgment concluded that, "NMFS improperly relies on future federal actions, uncertain state and private actions, and action agency measures that are beyond their authority, unfunded, and vague to reach a no-jeopardy finding for its RPA."

"In oral argument, counsel for the state of Idaho suggested that the court must decide whether the ESA is flexible enough to accommodate the complex situation confronting the parties here," Redden's opinion says. Idaho intervened in the case on behalf of NOAA Fisheries.

"While the court understands the complexities involved in trying to balance the competing requirements of the FCRPS with the needs of salmon, the issue before this court is limited to whether NOAA complies with the requirements of the ESA and its implementing regulations in reaching its no-jeopardy conclusion in the 2000BiOp. The court concludes that it did not and plaintiffs;' motion for summary judgment is granted," Redden said. The plaintiffs had asked that the judge require NOAA fisheries to withdraw the BiOp and reinitiate consultation with the federal "action agencies" that operate the dams.

Redden has scheduled a May 16 hearing during which the terms of a remand of the biological opinion will be discussed, such as how long NOAA Fisheries will be given to rework the document and what will be done in the hydrosystem and off-site in the interim to avoid jeopardizing ESA-listed stocks.

Redden said the remand "is appropriate in order to give NOAA the opportunity to consult with interested parties to insure that only those range-wide off-site mitigation actions which have undergone section 7 consultation, and range-wide off-site non-federal mitigations that are reasonably certain to occur are considered in the determination whether any of the 12 salmon ESUs will be jeopardized by continued FCRPS operations."

"This was always just a plan about planning - one that put off for tomorrow decisions we need to make now if our children are to enjoy wild salmon in a river that is the heart of this region," said Todd True, one of the plaintiff's attorneys.

"The court saw through the plan's empty promises and said they are not enough to comply with the law. These fish are in real trouble; they need real action. The court has given us all an opportunity to take effective action now," said True, of Earthjustice.

The plaintiffs saw the plan as inadequate and pressed the lawsuit to bring change.

"It's a great opportunity to go back and look at all of the alternatives," True said. And while the breaching of four lower dams was not something that the groups asked the judge to order, it is an alternative that should be considered in the upcoming process.

"That is certainly an alternative that you would see a lot of scientists behind," True said.

NOAA Fisheries and the U.S. Justice Department are reviewing the order and opinion, awaiting next week's hearing, and weighing their options.

"We don't know yet if we're going to appeal," said Brian Gorman, a spokesman from NOAA Fisheries Northwest regional office.

He expects that the federal attorneys would continue to argue, as they did during a recent hearing before Redden, that "the biological opinion, even if it is flawed, remain in place" during the remand.

"It's doing what it set out to do and there seem to be some results. Certainly no one would argue that things have gotten worse," Gorman said of BiOp implementation that has focused attention on hatchery reform to both aid recovery and avoid negatively impacting native fish. Habitat restoration measures and hydrosystem fixes are moving forward as well. Steelhead and salmon returns from 2001 to date have been among the largest on record (since 1938). That trend is credited in most quarters to a naturally improved ocean environment that has enhanced survival during that part of the fishes' life cycle. But freshwater improvements should also get some credit, Gorman said.

"The action agencies are all very much on track with the 199 actions that the BiOp calls for," Gorman said.

The Bonneville Power Administration does not intend to blink either, at least for now. As an action agency that markets power from the federal system, BPA has the responsibility of seeing that many of the BiOp prescriptions are implemented, and funding large portions of the plan.

"We're just kind of in a wait and see mode," said BPA spokesman Bill Murlin. The agencies await the decision about whether to appeal. And NOAA Fisheries and the action agencies find out following the May 16 hearing how the judge wants them to proceed, and whether the 2000 BiOp will remain in force during the remand period.

"From our point of view, the plan has been working," Murlin said.

The conservation and fishing groups say the federal plan continues to allow the federal dams to kill a disproportionate share of the fish as compared to the other factors that have caused population declines.

"Salmon and fishing communities have long borne the weight of bad federal decisions," said Glen Spain, Northwest regional director for the Pacific Coast Fishermen's Federation. "What the court said is that the federal government should go back and get it right this time, before both the salmon and the fishing communities that once depended upon them all go extinct."

Redden's decision places Snake River dam breaching back on the table, according to Don Sampson, executive director of the Columbia River Inter-Tribal Fish Commission. The Nez Perce, Umatilla, Yakama and Warm Springs tribes joined the lawsuit as "amici" on the plaintiffs' behalf.

"We need a plan to protect fish, not dams. Unless BPA provides actions certain to restore salmon . . . and fund them, Snake River dam breaching is back on the table," Sampson said.

Sampson said the BiOp remand could result in an improved, evidence-based biological opinion containing stronger language directed toward the Corps, Bureau and BPA.

"Hopefully, the National Marine Fisheries Service will finally get the picture and make this its last trip to the drawing board to redo the biological opinion," Sampson said. "I also hope it will send a message to Bonneville, the Bureau of Reclamation and the Corps of Engineers that they can't use poorly written and researched policy and empty promises to slide past their obligations to salmon."

"We believe this decision will help hold the dams accountable for their impacts on the salmon," Sampson said.

Idaho deputy attorney general Clay R. Smith said he was disappointed, but not surprised, by Redden's order. He said Idaho feels that many of the activities the judge judged as less than reasonably certain to occur are, in reality, on firm ground. An example, he said, is the Northwest Power and Conservation Council's fish and wildlife program.

"Idaho is quite committed to the Council process," Smith said.

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.

Lined up with NMFS 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