Salmon Plan Faulty, Judge Rulesby Joe Rojas-Burke
The Oregonian, May 8, 2003
A federal judge on Wednesday ordered the U.S. government to scrap as inadequate its methods for recovering Columbia River Basin salmon, heeding conservationists' claims that endangered fish were unprotected from hydroelectric dams.
The ruling throws open the possibility of dramatically stepped-up government intervention to meet the requirements of the federal Endangered Species Act -- including the breaching of four dams on the lower Snake River.
Those dams generate power and allow barges to carry grain and other goods from Lewiston, Idaho, to the Pacific Ocean. They were spared breaching in 2000, when the government promised instead a series of habitat-rebuilding measures to help wild salmon stocks.
The ruling is a setback for the Bush administration. Opposed to actions that compromise hydroelectric output at Columbia Basin dams, the White House must now devise a salmon recovery strategy that meets the court's standards. Blain Rethmeier, spokesman for the Justice Department in Washington, D.C., on Wednesday said attorneys in the case have not decided whether to appeal.
But dam removal "needs to be on the table if the government is going to comply with the law and prevent the extinction of one of the world's greatest wild salmon and steelhead migrations," said Jan Hasselman with the National Wildlife Federation, one of several conservation groups and fishing businesses that brought the action against the National Marine Fisheries Service in May 2001.
Still, the fisheries service, the U.S. government's top overseer of salmon protection, on Wednesday defended its "biological opinion," or blueprint for recovering salmon and steelhead.
Allowing that it might contain legal flaws, "the biological opinion . . . seems to be doing its job," said spokesman Brian Gorman in Seattle.
Twelve populations of salmon and steelhead in the Columbia Basin are protected under the Endangered Species Act. Many other stocks have already been driven to extinction. Populations collapsed after decades of intense fishing and habitat destruction from logging, mining, cattle grazing and dam-building.
The government issued its blueprint for recovery in December 2000 after state and federal agencies spent five years and tens of millions of dollars evaluating breaching. The agencies had focused on four runs of salmon and steelhead that must surmount eight dams to reach spawning grounds on the Snake River in Idaho.
In deciding against breaching, federal officials, with White House support, instead promoted habitat restoration, improvement of hatcheries and adjustments to fish-passage devices at dams. Their blueprint also stated several goals, which, if unmet, would trigger reconsideration of removing dams as early as 2005.
But plaintiffs argued the plan ignored lethal threats posed by the hydroelectric system and relied too heavily on work to be performed by other agencies to make up for ongoing fish kills caused by dams.
Judge James A. Redden, seated in the U.S. District Court in Portland, agreed.
His ruling said the fisheries service failed to meet the legal standard to show that protective actions would be "reasonably certain" to occur and make up for the harmful effects of dams.
"It was a plan about planning. It was putting off the tough decisions, in a way, presenting an illusion of recovery," said Todd True, the Earthjustice Legal Defense Fund lawyer who led the conservationists' lawsuit.
Second time for plan
The ruling is the second time a judge has ordered the fisheries service to rewrite its recovery plan for Columbia Basin salmon.
The first came in 1993 and set the stage for the long process of negotiation between states, sovereign tribes, federal agencies and industry groups that led to the current biological opinion.
"It's been 10 years that the federal government has been trying to implement the Endangered Species Act. Now we're back to Snake River dam breaching as an alternative," said Don Sampson, director of the Columbia River Inter-tribal Fish Commission, representing tribes with treaty rights to Columbia Basin salmon.
Sampson said the tribes favor removal of the dams. But he said his group has also proposed changes in hydropower system operations that, by returning river flows to a more natural state, could avoid the need for dam breaching. Dam operations now fluctuate wildly to meet electric power demands of cities and industries, routinely stranding spring juvenile fish on their way to the ocean.
"We've basically been ignored, and now we're back to square one again," Sampson said Wednesday.
Plan failed to meet requirements
Tribes and conservationists have also faulted the government for decisions during the drought year 2001, when dam operators maximized electricity production at the expense of fish. Federal officials have said they did the best job they could for fish and regional power needs during a difficult year.
But conservationists argue the actions revealed how the current salmon-management plan failed to meet the requirements of the Endangered Species Act.
"Now we have an opportunity here to look at actions that will actually promote the survival and recovery of these fish," said True.
Electric utilities, farmers and other industries fiercely oppose the removal of dams. Industry groups and Idaho, Washington and Montana joined the defense of the fisheries service.
The Port of Lewiston each year ships about 1 million tons of wheat and barley down the Snake River and another 1 million tons of other commodities such as paper, wood, potatoes and minerals.
"We export 90 percent of the agricultural products produced in our region," said port manager Dave Doeringsfeld. Without dams to allow navigation, "you'd be looking at a lot fewer farmers being able to make it within the region with the increased costs of shipping their crops by rail or by truck."
While dam breaching may return to the negotiating table, True said, it's too early to speculate how the fisheries service will revise its recovery plan.
"Vagueness and speculation about who must do what will be rung out," True said. "It's going to have to be built around things that will actually happen."
Redden scheduled a hearing May 16 to decide what becomes of the current management plan while the fisheries service works on a new one.
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