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BiOp Challengers File Brief Detailing Alleged Deficiencies by Staff Columbia Basin Bulletin, November 21, 2008

"Indeed, it does not even provide a jeopardy analysis for endangered Snake River sockeye."

A new federal salmon plan that agencies say will boost beleaguered wild populations instead "seeks to shrink the magnitude of the problem salmon face" and continues a "pattern of matching an analysis to an outcome, rather than allowing the analysis to inform the outcome...," according to a legal brief filed Tuesday by Earthjustice.

NOAA Fisheries Service's 2008 Federal Columbia River Power System biological opinion is "illegal notwithstanding atmospherics about changed agency attitudes and perspectives," the brief said of the U.S. Department of Justice's defense of the Columbia/Snake river basin salmon protection strategy.

Earthjustice and the state of Oregon, with the support of the Nez Perce Tribe, have asked the U.S. District Court to declare the strategy contrary to the Endangered Species Act, the Administrative Procedures Act and the Clean Water Act. Earthjustice represents a coalition of fishing and conservation groups led by the National Wildlife Federation.

Filings this week support earlier requests for summary judgment, and rebut requests by the federal government and others that the coalition's and Oregon's complaints be dismissed. Federal attorneys are now scheduled to respond by Dec. 12. Oral arguments in the lawsuit are slated Jan. 16.

The May 5 FCRPS BiOp says the federal dams' existence and planned operations do not pose jeopardy to 13 ESA-listed Columbia River basin salmon and steelhead stocks. The document's "reasonable and prudent alternative" outlines research and project operational and structural measures that NOAA says will improve fish survival up and down the system. It also lists off-site work, such as habitat improvements and changes in hatchery operations, that are expected to improve survival of protected wild stocks.

The fishing and conservation groups and Oregon filed complaints challenging the BiOp this summer. Summary judgment motions filed in September ask that the strategy be declared illegal, as were predecessors issued in 2000 and 2004. A court-ordered remand of the 2004 BiOp involved a federal collaboration with states and tribes to produce a new strategy.

The states of Idaho, Montana and Washington on Oct. 24 filed a joint motion in support of the new BiOp, as did the Umatilla, Warm Springs and Yakama tribes. The Colville Tribes, Kootenai Tribe of Idaho and Confederated Salish and Kootenai Tribes, Northwest RiverPartners and the Northwest Power and Conservation Council also asked Judge James Redden to reject the NWF challenge.

"Federal Defendants have heeded this Court's admonitions and submit that the FCRPS BiOp does just what this Court directed: After an extensive and fully transparent collaboration with the regional State and Tribal sovereigns, Federal Defendants have produced a comprehensive BiOp that is grounded firmly in sound science, that significantly improves the status quo, and that fully complies with the ESA and this Court's and the Ninth Circuit's orders," Oct. 24's federal memorandum to the court says.

"The fact is that while these dissenting parties dress up their complaints as claims about analytical methods and scientific judgments, at bottom their challenges are really driven by philosophical views about how the FCRPS should be run and, certainly for NWF and the Nez Perce Tribe, about whether the Snake River dams should even exist," the federal memo says.

The NWF says "the latest jeopardy standard diverges from the requirements of the ESA, its implementing regulations, the relevant case law, and a prior jeopardy framework that correctly identified the elements of a jeopardy analysis for salmon and steelhead."

It also "improperly relies on future federal actions that have not undergone consultation as well as uncertain habitat actions to support its no-jeopardy finding and that it fails to objectively account for the considerable uncertainty of NOAA's calculations, relies on the assertion of a qualitative judgment that is not rationally explained, includes errors and inconsistent use of available data, and fails to address relevant and available information," the Nov. 18 brief says. "Indeed, it does not even provide a jeopardy analysis for endangered Snake River sockeye."

"The federal defendants (hereafter, NOAA) paint a picture in which, through the Herculean efforts of the federal agencies, the past concerns of the courts have been addressed, the listed species are on their way to recovery, and the few if any remaining issues will be deftly handled through 'adaptive management,'" according to arguments filed Tuesday by Oregon. "As NOAA describes it, there is little reason for disagreement, as all legitimate points of contention have been addressed through collaboration and accord with most -- indeed, all but the most intransigent--of the sovereigns."

The Bonneville Power Administration, the U.S. Army Corps of Engineers and the Bureau of Reclamation this past spring executed the "Columbia Basin Fish Accords" with the states of Idaho and Montana, as well as the Warm Springs, Umatilla, Yakama and Colville tribes that include a commitment to spend up to $933 million more over the next 10 years, primarily on salmon mitigation and recovery, and an additional $50 million on lamprey. BPA markets the power generated by the federal hydro system. The Corps and Bureau, who are also defendants in the lawsuit, own and operate the dams.

But, Oregon says, the BiOp is built on a "series of optimistic assumptions about the present status of the species, about the effects of dam operations, and about the gains that may be achieved through habitat mitigation."

The BiOp is "based on an analysis that declines to compare the effects of the action to the trajectory needed to achieve recovery, but instead merely considers the effects of the action on the current status of the species, with any perceptible increase passing NOAA's latest standard," the Oregon brief says. "The resulting recovery-prong analysis -- completely divorced from the biological needs for sustained recovery -- fails to satisfy the requirement to consider the effects of the action on the prospects for recovery."

"This is a healthy reminder that the purpose of the ESA was not and is not to allow listed species to 'survive' in spite of harmful actions, or to develop 'mitigation measures' for harmful actions that allow listed species to experience slightly less harm," according to a brief filed Tuesday by the Nez Perce Tribe. "It is to bring each listed species to the point where the protections of the ESA 'are no longer necessary.'"

"After reading the Federal Defendants' Opposition and Cross-Motion for Summary Judgment, one comes away with such a pervasive feeling of agency annoyance at the obligations imposed by the ESA, rather than any sense of executive duty to carry out federal law, that one feels compelled to recall the fundamental purpose of the ESA and remember what is at stake in this case," the Nez Perce brief says.

"... NOAA insinuates that the parties opposing the biological opinion are using this

litigation as a Trojan horse to advance a dam-breaching agenda. Oregon rejects that accusation," Oregon's brief says.

"Contrary to NOAA's insinuation, it is the failure to implement prudent operations that is far more likely to bring the region to the brink where darn-breaching becomes a necessary contingency."

More information about BiOp litigation can be found at www.salmonrecovery.gov

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