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Groups File Brief Opposing Delay on Upper Snake Project Case by Barry Espenson Columbia Basin Bulletin - July 9, 2004

Delaying judgment in a lawsuit challenging federal dam operations on the Upper Snake River would be doing a legal disservice to the plaintiffs, and a continuing biological disservice to salmon and steelhead downriver that are listed under the Endangered Species Act, according to conservation groups pressing the litigation.

The time for deciding the merits of their case is now, according to the groups, not next year as the federal defendants have asked.

Federal agencies involved are amidst a reworking of the documents that the environmental groups say violate the ESA. But they are following the same, illegal path that forced litigation, according to a brief filed by the groups July 1 in U.S. District Court in Portland. The filing asks the court to deny a U.S. Justice Department motion that the lawsuit be stayed April 2005 when the U.S. Bureau of Reclamation and NOAA Fisheries will have completed, respectively, a biological assessment and biological opinion regarding dam operations' effects on listed fish.

"Nothing will be clarified by delaying a decision on the merits of American Rivers' claims against these opinions because defendants will continue to treat the BOR Upper Snake projects in future consultations as they have in the past," according to the July 1filing by Earthjustice attorneys on behalf of Idaho Rivers United, American Rivers, National Wildlife Federation, and the Pacific Coast Federation of Fishermen's Associations and Institute for Fisheries Resources. "In its motion for partial summary judgment, American Rivers has explained why the defendants' approach to consultation on these projects violates the law. A delay in achieving compliance with the ESA can only cause prejudice to plaintiffs and risk additional harm to listed species.

"Indeed, a stay of this case now would be tantamount to an adverse decision on the merits or a refusal to exercise jurisdiction. American Rivers, as well as Snake River salmon and steelhead, deserve their day in court now, not at some uncertain future date," according to the fishing and conservation groups.

The lawsuit was originally filed against NOAA Fisheries in January. The Bureau of Reclamation was added as a defendant in March. The lawsuit focuses on 22 Bureau storage projects located upstream of Hells Canyon Dam in Idaho. NOAA Fisheries issued a 2001 BiOp and a 2002 supplemental BiOp that say the Bureau's operation and maintenance of the projects do not jeopardize the survival of listed salmon and steelhead.

The conservation groups say the BiOps violate the ESA because the no-jeopardy conclusions rely on speculative future actions, including the same offsite, range-wide actions that were rejected as illegal in a separate case involving the Federal Columbia River Power System BiOp. The Upper Snake lawsuit also claims the federal agencies have improperly segmented operation of the dams and reservoirs into Upper Snake and FCRPS components for the purposes of ESA consulations. The plaintiffs say the consultation process, and the two lawsuits, should be combined.

The groups also say the federal agencies did not truly evaluate whether operation of the Upper Snake projects jeopardize listed Snake River salmon and steelhead.

The government has said that the upper Snake River operations are not a part of the FCRPS. Nor are they "managed in coordination with" the FCRPS projects on the lower Snake in Washington and on the lower Columbia River, as the plaintiffs contend, "even though some water released from the Upper Snake Projects may flow through the FCRPS projects to be used for statutory purposes." The FCRPS asks for 427,000 acre feet of water to be released from the Upper Snake reservoirs to supplement flows for migrating salmon.

The state of Idaho and water districts and water user groups have joined the lawsuit as intervenors on the side of federal government.

The plaintiffs in May asked for a partial summary judgment in the case asking for a judicial review of the BiOps and issues raised in the original complaint. The following month, the Justice Department asked that the case be stayed until completion of the consultation on a new BiOp.

The release of a new BiOp in April of next year will make the plaintiff's claim's "prudentially moot," according to document filed last month by federal attorneys.

In their response to a request for a stay, the conservation groups say "The government does not address the fact that in the meantime, and until at least March of 2005, the current agency actions that are before the Court will remain in place and continue to guide the conduct of BOR and NOAA Fisheries. The doctrine of prudential mootness does not extend to those situations where the government has simply promised new action in the future but left its present challenged action unchanged – and if the doctrine did extend that far, few if any cases would be beyond its reach.

"Moreover, as American Rivers explains above, it is abundantly clear that the government will continue to make the same mistakes in any future action it may take that it made in the two biological opinions that are already before the Court. It undoubtedly will prepare a separate biological opinion for the BOR's Upper Snake projects to replace the opinions plaintiffs have challenged."

Better, the groups say, to address those issues now.

The federal agencies now have until July 14 to respond to the conservation groups' filing regarding the stay. The judge in the case, James A. Redden, would then presumably make a decision on the stay.

"We have not heard one way or another whether he'll call us in for oral arguments" on the stay issue, said Steve Mashuda of Earthjustice. If a stay is granted, the case would be put on the shelf. If it is denied, briefing would resume on the plaintiff's motion for summary judgment.