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Oregon Judge Dumps BiOp over "Uncertainties"

by Bill Rudolph
NW Fishletter, May 20, 2003

A federal judge in Oregon has followed through with his inclination to throw out the 2000 Columbia Basin hydro Biological Opinion because it relies on actions that would take place outside the Federal Columbia River Power System. The measures, which the BiOp required as a way to mitigate ESA-listed fish losses in the basin, "are not reasonably certain to occur," US District Court Judge James Redden said in his May 7 ruling.

Environmental and fishing groups sued federal agencies in May 2001, alleging in part that the BiOp relied on too many unspecified future actions to improve fish habitat, hatcheries, and harvest as part of a "Reasonable, Prudent Alternative [RPA]" to proposed dam operations.

Along with some modifications to dams and their operations, the BiOp called for many improvements to Columbia Basin hatcheries and habitat. The total mitigation package spelled out in the telephone-book-sized BiOp led federal authorities to decide that the dams and their operations did not jeopardize the existence of the 12 different stocks of Columbia and Snake River salmon and steelhead. Some have been listed for protection under the Endangered Species Act since 1991.

Judge Redden didn't buy the government's argument, voiced April 21 in oral testimony in National Wildlife Federation v. NMFS, that the BiOp's rigorous evaluation process increased NOAA's ability to rely on non-federal actions to improve salmon and steelhead populations. His ruling was presaged in a draft opinion issued before oral arguments, along with a series of questions.

Redden said the adoption of a monitoring system may be a laudable effort, but it "does not supplant the requirement that NOAA rely only on those federal mitigation actions that have undergone Section 7 consultation [under the ESA] and non-federal mitigation actions that are reasonably certain to occur when it renders a no-jeopardy opinion."

The judge ruled that the BiOp was "arbitrary and capricious" because it was "improper" for NOAA to rely on both federal range-wide actions--encompassing the Columbia Basin as well as the dams--and off-site mitigation actions--such as those aimed at hatchery and habitat--that hadn't undergone Section 7 consultation under the ESA; and non-federal range-wide, off-site mitigation actions that were not reasonably certain to occur.

Redden called for a May 16 hearing to discuss remand (see story 2), which would allow NOAA to consult with interested parties to ensure that only off-site federal actions that have undergone consultation and non-federal actions reasonably certain to occur would be considered in the determination of whether the listed stocks would be jeopardized by operation of the hydro system.

Redden did not rule on the scientific issues associated with the lawsuit. Last month, he specifically separated them from the immediate question of whether these recovery actions were reasonably certain to occur. But his decision gave dam breaching proponents new hope.

Earthjustice and other groups have never been shy about their motives in the case. They want the four dams on the lower Snake River breached, and said so when they originally filed the suit two years ago.

Earthjustice attorney Todd True said the court saw through the plan's "empty promises, and they are not enough to comply with the law." True said Redden's ruling gives the region an opportunity to take effective action.

Mark Van Patten, president of the National Wildlife Federation, characterized the decision as a rejection of the federal plan "because it lacks scientific credibility."

Others were more blunt about Redden's ruling. "Unless BPA provides actions to restore salmon...and fund them, Snake River dam breaching is back on the table," said Don Sampson, executive director of the Columbia River Inter-Tribal Fish Commission.

NOAA Fisheries spokesman Brian Gorman told NW Fishletter that his agency has not decided whether to appeal Redden's decision, or repair the damage. "The judge ruled that off-site mitigation is flawed. The silver lining is that, flawed or not, the BiOp seems to be working," Gorman said. "We do have better returns from habitat improvements, and the three agencies that run the dams, with a couple of exceptions, are right on track with implementation."

If the ruling is remanded, NOAA Fisheries likely will have a year to satisfy the court's concerns, Gorman said. He said his agency hopes the judge will leave the current BiOp in place during any new consultations.

Gorman said Redden's decision was fairly focused on whether NOAA Fisheries can assure greater certainty for these off-site actions, and that it had nothing to do with breaching dams.

Before issuing the latest BiOp, the feds said it might be possible to save the fish without breaching the dams. In the summer of 2000, when the BiOp's first draft went public, George Frampton, then chair of the White House Commission on Environmental Quality, said breaching the dams was not necessarily "essential" to recovering the four Snake River stocks "and probably wouldn't be sufficient."

Frampton pointed out that critical uncertainties, like understanding total survival of fish barged around the Snake dams, needed more study before the issue could be resolved (A critical NOAA Fisheries study designed to investigate the uncertainties of barging fish was put on hold this year, a victim of budget uncertainties and slow response from state agency and tribal fish managers).

Meanwhile, power industry folks are trying to perceive the silver lining Gorman sees in Redden's decision. Public Power Council attorney Denise Peterson said the upcoming hearing gave NOAA "an opportunity to make a commitment for cost-effective salmon recovery measures."

Others, like attorney James Buchal, who represented intervenor group Columbia River Alliance, which supported NMFS in a years-long challenge by environmentalists to the 1995 BiOp, saw a more nefarious scenario in the BiOp decision. He pointed out that the BiOp was a product of the Clinton administration. "Based on years of experience with this process, I am highly confident that the biological opinion was designed to self-destruct upon judicial examination," Buchal said. "The United States Court of Appeals for the 9th Circuit has long held that a jeopardy finding cannot be avoided by reference to mitigation programs, unless such mitigation programs are reasonably certain to occur."

A Seattle attorney familiar with BiOp litigation agreed. The government attorneys did the best they could, "given the hand they were dealt."

The day after the BiOp decision was announced, a traveling panel of 9th Circuit judges heard oral testimony in Portland that challenged NMFS on another ESA front: whether hatchery fish should be counted as part of a currently listed wild stock. If the Niners uphold a lower court decision, many Northwest salmon and steelhead stocks could be de-listed soon. The federal fish agency didn't appeal the earlier decision (Alsea Valley Alliance v. NMFS). The agency is re-vamping its hatchery policy, but is not expected to make any changes that reduce the number of listed stocks.

Bill Rudolph
Oregon Judge Dumps BiOp over "Uncertainties"
NW Fishletter, May 20, 2003

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