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Feds Cry Foul Over Attempt to Add Upper Snake Issue to BiOp Case by Bill Rudolph NW Fishletter, November 26, 2003

A Nov. 14 brief filed by the Department of Justice in the BiOp remand (NWF v. NMFS) case in Oregon District Court takes issue with the attempt by plaintiffs to fold a potential lawsuit over upper Snake River water issues into the remand.

Conservation groups say that water from upper Snake irrigation storage projects is needed to help meet target flows for ESA-listed fish mandated in the BiOp. The upper Snake is currently managed under a separate biological opinion with the Bureau of Reclamation.

The feds' brief says the plaintiffs' request should be denied because it was never raised in their original lawsuit since it includes "a different proposed action" than reviewed in the 2000 BiOp.

It also says that plaintiffs are wrong to assume that NOAA is empowered to re-configure the proposed actions to meet a non-jeopardy ruling, when it's really up to the action agencies [BPA, BOR, BuRec] to identify the kinds of actions that will be reviewed by the federal fisheries agency.

The brief says that NOAA will perform a new analysis of any new "Reasonable, Prudent Alternative" as part of the remand, and if a proposed action includes upper Snake projects, the agency will then take it up.

The feds also said that the plaintiffs are mistaken that NOAA will exclude parts of the federal action in its revised BiOp to limit the action area to a smaller region "than that affected directly and indirectly by the federal action."

Government attorneys argued that plaintiffs' argument relied on "hypotheticals" and "allegations involving scientific issues of cause and effect." They said there was no support in the regulations for environmental attorneys' "novel theory that the action area must include all the areas where a species affected by the proposed action for any proportion of its life may roam..."