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Feds Answer Lawsuit on Upper Snake Bureau of Rec Projects by Barry Espenson Columbia Basin Bulletin - April 23, 2004

A 19-page federal "answer" filed in Portland's U.S. District Court last week disputes conservation groups' claims that a no-jeopardy NOAA Fisheries biological opinion regarding the operation of Bureau of Reclamation irrigation projects in Idaho's Snake River basin is illegal.

"We say we're doing it appropriately," Justice Department attorney Fred Disheroon said of the BiOp, and a supplemental document, that evaluates whether those operations jeopardize the survival of salmon and steelhead stocks listed under the Endangered Species Act. The April 14 filing throws the ball back in the conservation and fishing groups' court.

"It's up to them to prove their case. We don't concede any of it," Disheroon said. Neither side in the case is sure what the next step in the case would be.

"There are a number of ways the case could go, and I'm not ready to say which way it will go," said Todd True of Earthjustice, which is representing the plaintiffs in the case -- Idaho Rivers United, American Rivers, National Wildlife Federation, and the Pacific Coast Federation of Fishermen's Associations and Institute for Fisheries Resources.

The lawsuit filed on Jan. 16 involves 22 Bureau storage projects located upstream of Hells Canyon Dam, designated in federal documents as "Upper Snake" projects.

The complaint asks the court to order the fisheries agency to correct what the groups say are numerous errors in the analysis of the effects of these projects have on threatened and endangered salmon and steelhead and develop a comprehensive plan to restore these fish. Those stocks include Snake River spring/summer chinook, Snake River fall chinook, Snake River sockeye, and Snake River steelhead "evolutionarily significant units" or ESUs.

The groups also want to have the new analysis of Upper Snake operations integrated into an on-going rewrite the Federal Columbia River Power System biological opinion.

The lawsuit says the Upper Snake BiOp issued in 2001, and a three-year extension or supplement released the next year, violate procedural and substantive requirements of the ESA, and allows the Bureau to operate Upper Snake projects in ways harmful to listed salmon and steelhead.

All of that is untrue, according to the response filed last week by the federal government. The "answer" reiterates the government's stance 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, according to the federal response, "even though some water released from the Upper Snake Projects may flow through the FCRPS projects to be used for statutory purposes."

The federal answer says that the complaint's allegations "present plaintiffs' views of disputed facts and scientific issues, many of which are the subject of continuing scientific investigation, and consist of generalizations so vague as to preclude formulation of an appropriate response.. While certain individual statements taken alone are not objectionable, taken collectively, the statements . are not objective fact and are therefore denied in their entirety as formulated."

The federal response says:

• The plaintiffs have failed to state a claim upon which relief may be granted.
• The issues raised in the complaint are or will soon be moot.
• The court lacks subject matter jurisdiction over the action.
• The plaintiffs lack standing to sue.

The state of Idaho and its governor, Dirk Kempthorne, and a number of water user groups in early March sought, and were granted, status as intervenors in the case of the side of NOAA Fisheries. Those groups include The Idaho Water Users Coalition, Inc., Gem Irrigation District, et al. and the Pioneer, Settlers, Nampa and Meridian Irrigation districts.

The water users say the lawsuit is attempt have more of the storage water dedicated to meet what they say are "unjustified" FCRPS flow objectives set downstream on the Snake and Columbia rivers for fish migration. The Coalition says the flow augmentation strategy has been repeatedly discredited by studies showing that it does not decrease travel time or provide any temperature benefits for the fish.