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Group Sues Council in Ninth Circuit, Says 2014 Fish and Wildlife Program Fails to Protect Salmon by Staff Columbia Basin Bulletin, January 22, 2016

A group that says the Northwest Power and Conservation Council's recently adopted 2014 Fish and Wildlife Program fails to protect Columbia River basin salmon and steelhead filed suit in the Ninth Circuit Court of Appeals last week.

The Northwest Resource Information Center in Eagle, Idaho, which is represented by Earthjustice, filed the suit last Thursday, January 14.

In its court brief, the plaintiffs say the Council in its 2014 Fish and Wildlife Program (adopted in October 2014) fails to comply with the Northwest Power Act of 1980's requirement to "protect, mitigate, and enhance" fish and wildlife species, especially salmon and steelhead, which, the brief says, are adversely affected by the development and operation of the Columbia River hydroelectric dams.

Rather than develop a program to prevent extinction and restore runs of salmon and steelhead, the Council, according to the court brief, instead relies as their guide on federal Columbia River biological opinions that are constantly in court.

"There are no substantive salmon restoration measures for the hydrosystem in the Program; those in the BiOp -- which don't even include current court-ordered spill -- can't even pass muster for preventing jeopardy of extinction," said NRIC's Ed Cheney. "The Power Act requires far more than merely preventing extinction."

John Harrison of the Council's public affairs division said that the Council is not going to comment on the petition at this time, but that they are studying it now and will make their first comments April 13 when response briefs are due to the court.

"Having said that, we understand that fish and wildlife restoration is controversial," Harrison said. "But we work really hard to resolve all points of conflict in open meetings," before adopting either the Fish and Wildlife Plan or the Power Plan.

The Council's Power Plan and Fish and Wildlife Program are two parts of the same document, according to Harrison. First, the Fish and Wildlife plan is adopted, then the Power Plan. "If, in the future, the court rules against the Council it may cause us to go back and take a look at the Power Plan." The Power Plan is on track to be approved by the Council at its February meeting in Portland, he added.

Another September 2012 suit by the NRIC filed in appellate court opposed the Council's Sixth Northwest Power Plan. That suit complained that the Council had failed to give due consideration to accommodate fish and wildlife interests when it adopted the plan.

The NRIC had argued that the Power Plan, which includes the Fish and Wildlife Program, is to restore salmon "decimated" by the hydro system and that it should give "due consideration" to river flows that would aid the restoration of salmon and steelhead runs.

For the most part, the panel of three judges disagreed with NRIC and upheld the Power Plan, but it asked that two provisions of the plan be fixed.

The provisions were to allow public notice and comment on the proposed methodology for determining quantifiable environmental costs and benefits, and to reconsider the inclusion in the Plan of a market price based estimate of the cost of accommodating fish and wildlife interests.

According to Cheney, NRIC suit filed last week argues that:

• The 2014 Fish and Wildlife Program "illegally perpetuates the Council's 35 year-long refusal to fulfill its duty to develop a program to restore Snake River salmon decimated by the Federal Columbia River Power System;"

• The Council abdicated its duty by defaulting its Fish and Wildlife Program requirements "to an Endangered Species Act Biological Opinion which has been serially rejected by the federal court." That BiOp, Cheney says is "intended to prevent extinction, not produce the full restoration required by the Northwest Power Act that created the Council;"

• He goes on to say that the Fish and Wildlife Program was improperly influenced by the Bonneville Power Administration which has paid "hundreds of millions of ratepayer dollars to states and tribes to secure their support for the fiction that the BiOp 'satisfies' the much greater salmon restoration requirement of the Northwest Power Act."

"Thirty five years after the salmon restoration provisions of the Power Act became law, after spending billions of ratepayer and taxpayer dollars, and with Snake River salmon on the List of Endangered Species, the Council in its 2014 Program still refused to even identify what changes in the hydrosystem are necessary to achieve the Snake River salmon restoration intent of the Act," Cheney said.

The current brief asks the court to require the Council to comply with the Power Act by:

• developing biological objectives needed to comply with anadromous fish restoration goals within 180 days;

• developing and adopting specific mainstem measures beyond what is required by the BiOp, especially for Snake River salmon and steelhead;

• recognizing that fish and wildlife measures needed to protect anadromous fish "cannot be rejected solely because [they] will result in power losses and economic costs;"

• developing and adopting a timeline to implement the measures.

Related Pages:
Suit Announcement

Related Sites:
NW Power/Conservation Council Approves New Columbia River Basin Fish and Wildlife Program, by Staff Columbia Basin Bulletin, 10/10/14
Ninth Circuit Affirms Council's Northwest Power Plan; Orders Two Provisions Fixed, by Staff Columbia Basin Bulletin 9/27/13
Ninth Circuit Hears Arguments On Whether NPCC Power Plan Gave 'Due Consideration' To Fish/Wildlife, by Staff Columbia Basin Bulletin, 6/21/13
Final Brief Filed In Appeals Court Challenge To Council's Northwest Power Plan, Fish Mitigation, by Staff Columbia Basin Bulletin, 2/1/13
Parties File Briefs In Ninth Circuit Court Calling For Dismissal Of Challenge to Council's Regional Power Plan, by Staff Columbia Basin Bulletin, 1/4/13
Council Asks Ninth Circuit To Dismiss Legal Challenge To Sixth Power Plan 'As Without Merit, by Staff Columbia Basin Bulletin, 11/30/12
Briefing Begins On Court Challenge To Council's Sixth Power Plan; Petition's Focus Fish Mitigation, by Staff Columbia Basin Bulletin 10/26/12