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Feds Argue Against Removing Columbia Basin Salmon Plan by Mark Engler, Staff Writer Capital Press - May 23, 2003

PORTLAND -- If a federal judge who recently criticized salmon and steelhead restoration efforts in the Northwest decides to invalidate the government's existing plans for fish management, agencies that operate dams for power and waterborne navigation along the Columbia River System might soon find themselves flooded with lawsuits, according to an attorney for the National Oceanic and Atmospheric Administration.

Attorneys for NOAA Fisheries as well as a coalition of fishing industry, environmental protection advocacy groups and Northwest Indian tribes who are suing the agency met for a hearing before U.S. District Judge James Redden in Portland last week to discuss what should happen in the wake of an opinion issued earlier this month by Judge Redden that NOAA's working plan for fish protection and recovery in the Columbia Basin is inadequate.

The environmentalist and fishing industry coalition is suing NOAA Fisheries, formerly known as the National Marine Fisheries Service, or NMFS, because they believe NOAA's Columbia River Basin salmon recovery plan fails to meet the minimum requirements set forth by the federal Endangered Species Act.

Judge Redden gave a strong preliminary indication that he agrees with the coalition on May 7, when he issued an opinion that seemed to suggest he will likely soon remand the "biological opinion," formulated by NMFS in 2000 to address hydroelectric systems; effects on threatened or endangered fish, back to the agency for further work.

The crux of debate between NMFS and the coalition suing the agency at this point is whether or not the recovery plan, and the legal protections it affords dam managers for their "incidental take" of salmon and steelhead during the course of day-to-day system operations, should remain in place while the plan undergoes revision.

Fred Disheroon, special litigation counsel to the Environment and Natural Resources Division of the U.S. Department of Justice, argued before Redden that if the judge rescinds the plan before a new or improved plan is put in place, then a cascade of litigation spawned by groups and individuals seeking injunctions against agencies that run or oversee the dams will likely ensue.

"If one court starts instituting injunctive relief, you don't know where it might end," said Disheroon, adding that the Bonneville Power Administration's basic authority to manage the power system could be challenged, potentially disrupting power to the entire Pacific Northwest.

By contrast, Todd True, lead attorney for the plaintiffs, argued that if the judge leaves NOAA's fish recovery strategy in place while the agency is reworking it, hydrosystem managers will be provided cover to avoid actions that might bolster or benefit migrating salmon and steelhead numbers.

"They are not doing enough to protect the fishery," said True, who also question NOAA's contention that "chaos will ensue," or that "the region will fall apart," if the biological opinion is set aside.

The 2000 biological opinion acknowledged that continued dam operations indeed jeopardize fish and critical habitat that support them. But NMFS proposed a "reasonable and prudent alternative course of action" to prevent species extinction that the agency argues is based on aggressive" recovery efforts, short of removing four lower Snake River dams.

In his May 7 opinion, Redden concluded that many of the remedies and fixes the agency suggested be implemented to help fish are in fact not aggressive enough, lacking in both funding and assurances that they will actually work.

True said after the hearing that "there are a whole range of steps that would improve conditions for the fish, from improved flows to improved spills," and that the agencies that manage the Columbia-Snake hydrosystem should be taking those steps now, rather than continuing with operations as usual until NOAA comes up with new directions.

Officials for NOAA indicate it will take them at least a year to revise their salmon recovery strategy to address Redden's concerns. Disheroon said after the hearing that an appeal is also a possibility if NOAA and the justice department determine Redden is overstepping his authority - though no decision in that regard has yet been made.

"the courts really aren't the appropriate place to make decisions about how the Columbia River should be managed, because it involves all kinds of technical judgments, and you have to balance all kinds of different purposes," said Disheroon. "When the courts come in, they look at issues from the perspective of one particular statute. Somehow, that then often becomes the governing rule, and it doesn't take into account all the other requirements that may be sacrificed.

"In the typical ESA violation case, somebody is doing something that is harmful to a particular species, and subsequently you tell them to stop," he added. "Well, you can't stop operating a river. It's only a question of how you operate it, not whether you operate it, and the courts aren't suited for the role of deciding how to do that."

At the hearing last week Redden ordered the plaintiffs in the case to draft a brief within 10 working days outlining their position with regard to whether to leave the fish recovery plan in place. Afterwards, the government will receive an additional time to reply.