96 Salmon BiOp Case: Feds File Cross-Motion Following Challengers' Request for Summary Judgement, Staff, Columbia Basin Bulletin
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Salmon BiOp Case: Feds File Cross-Motion Following
Challengers' Request for Summary Judgement

by Staff
Columbia Basin Bulletin, March 27, 2015

Graphic: Survival rates of juvenile Chinook and Steelhead migrating downstream through the federal hydrosystem corridor.  Note that in most years, fewer than half the juvenile run has survived the dangerous downstream migration. Since the plaintiffs in a long-running legal battle over salmon and steelhead recovery plans for the Columbia River Basin filed for an expedient conclusion to the case last December, the federal government and supporting parties have been seeking summary judgement since March 6.

The plaintiffs, led by the National Wildlife Federation and represented by Earthjustice, have consistently maintained that federal agencies have failed to comply with the Endangered Species Act, the National Environmental Policy Act, and the federal Administrative Procedures Act.

(See CBB, Dec. 31, 2014, Plaintiffs Seek Summary Judgment Declaring Federal Salmon/Steelhead Protection Plan Illegal")

The cross-motion filed by the defendants with the District Court of Oregon declares that a 2014 biological opinion for salmon and steelhead management in the Columbia Basin "constitutes among the most exhaustive and comprehensive consultations ever conducted."

The most reasonable and prudent alternative set forth by the BiOp, the motion continues, "was developed using the best available science and data and provides an extensive suite of protective operations and mitigation measures that address limiting factors, reduce threats, through all life-history stages of salmon and steelhead."

In conclusion, the 80-page motion asserts that the overall recovery strategy that the BiOp would continue has been successful.

"When we look up from the minutia, we see that fish are doing well. Oregon now opens significant and recreational fisheries. The Nez Perce Tribe is pleased with the health of SR fall Chinook. And the region works cooperatively to implement one of the largest restoration endeavors in the United States," the motion filed for defendants including the U.S. Army Corps of Engineers, the Bureau of Reclamation and National Marine Fisheries Service states.

For well over a decade, the litigation has pitted a coalition of fishing and conservation groups against the federal government as well as upstream states, including Montana and Idaho, tribes, utility interests and power users, irrigators, navigators and others with a vested interest in the fish and/or other river resources.

The plaintiffs, led by the National Wildlife Federation, filed a motion for summary judgement on Dec. 16, 2014, followed by multiple briefs from supporting intervening parties in the case.

"NWF must once more respectfully ask the Court to address this dysfunction and reject another biological opinion for... operations that not only fail to comply with the ESA and its implementing regulations, but now also fails to comply with the requirements of the National Environmental Policy Act," states that motion, which is supported by a coalition of conservation groups.

Their challenge to the latest salmon-steelhead BiOp is the fourth filed over the past 14 years in U.S. District Court for the District of Oregon asking that Federal Columbia River Power System biological opinions prepared by NOAA Fisheries be overturned. Three previous plans have been remanded to NOAA Fisheries so flaws noted by the court could be repaired.

The 13 conservation and fishing groups say that the "supplemental" BiOp issued in January of 2014 merely rolls over inadequate and illegal strategies incased in BiOps issued in 2008 and 2010. Oregon District Judge James A. Redden in 2011 remanded the 2008 BiOp and its 2010 supplement.

"This latest blueprint is virtually indistinguishable from the plan rejected by the district court in 2011, not to mention the several illegal plans before that," said James Bogaard, Save Our Wild Salmon executive director.

A new wrinkle in the long-running litigation is that Judge Redden has stepped down from the case, after presiding over it since 2003.

Redden ruled that the 2008/2010 FCRPS BiOp, which was to prevail for 10 years, was illegal and ordered that its legal flaws be corrected by Jan. 1, 2014. BiOps are required under the ESA to evaluate whether federal actions, such as the operation of the dams, jeopardize listed stocks. A total of 13 listed salmon and steelhead stocks spawn in the Columbia River basin.

The case was reassigned to Judge Michael H. Simon, and it is unclear how he will regard the complex matters involved.

Simon received his commission to the U. S. District Court, District of Oregon, on June 22, 2011, following a nomination by President Barack Obama on Jan 5, according to the Federal Judiciary Center. The nomination was confirmed by the Senate on June 21. He took over a seat vacated by Ancer L. Haggerty.

Related Pages:
Plaintiffs Seek Summary Judgment Declaring Federal Salmon/Steelhead Protection Plan Illegal, CBB, December 31, 2014
Fishing/Conservation Groups File Sue Notice On Challenging Salmon BiOp In Ninth Circuit, CBB, April 4, 2014
NOAA Fisheries Issues New Salmon/Steelhead Biological Opinion For Columbia/Snake River Power System, CBB, Jan. 17, 2014
NOAA Fisheries Releases Draft 2013 Salmon/Steelhead BiOp, Says 2008 Biological Analysis ‘Still Valid', CBB, Sept. 13, 2013
Redden Orders New Salmon BiOp By 2014; Says Post-2013 Mitigation, Benefits Unidentified, CBB, Aug. 5, 2011
Federal Agencies Release Draft Plan Detailing 2014-2018 Actions To Meet BiOP Salmon Survival Targets, CBB, Aug. 23, 2013

Salmon BiOp Case: Feds File Cross-Motion Following Challengers' Request for Summary Judgement
Columbia Basin Bulletin, March 27, 2015

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