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Court Upholds Fish Passage Center Funding by Richard Walker Indian Country, February 12, 2007

PORTLAND, Ore. - It's tough to be a salmon on the Columbia River.

The salmon hatches and hangs out in the redd for a few days while it develops the ability to feed and avoid predators. Then, something kicks in and it begins its migration, from one tributary to another, then to a current that carries it downriver.

Before dams were built in this region, a free-flowing current would carry a juvenile salmon from a natal stream in Idaho to the Pacific Ocean in two weeks. The voyage now takes about two months. Because of dams, the flow of the Columbia is 50 percent of what it used to be.

It takes more juvenile muscle to make it to the ocean. A salmon has to navigate around reservoirs and dams. And it has to survive a gauntlet of predatory fish that have been stocked for sport fishers.

Meanwhile, a biological clock is ticking. If the salmon doesn't reach the ocean in time, if it doesn't taste that mix of salt and fresh water, it might think it's where it belongs and not make it to the big water.

''You can't mess with Mother Nature without the possibility of some negative effects,'' said Jack Giard, a Pacific Salmon Commission member.

But that's what the dams on the Columbia River did - they messed with nature. This river basin, the size of France, hosts a system of federal dams stretching from Idaho to Washington that produces the lowest-cost electricity in the United States. But there has been an environmental cost.

Before the dams were built, an estimated 10 million to 16 million adult fish returned annually to the Columbia River basin; today, only about 1 million fish return to spawn, according to the U.S. 9th Circuit Court of Appeals.

To ensure Columbia River salmon's survival, Congress passed the Northwest Power Planning and Conservation Act of 1980, which led to the creation of the Fish Passage Center. Since 1982, the center has gathered, analyzed and publicly disseminated data at 22 sites in the Columbia River basin - data related to environmental conditions, fish migration, hatchery releases, hydrosystem operations, spawning, water flows and water temperatures.

Bonneville Power Administration, the nonprofit federal agency that operates the hydropower dams on the Columbia, has used this data in consultation with fisheries and tribes - and in conjunction with its control over water flow past the dams - to help improve the survival rates of fish migrating up and down the Columbia River.

Margaret Filardo, a biologist with the Fish Passage Center, said the center updates its data daily and sometimes hourly.

''They have done this job and have done it in an exemplary way,'' said Charles Hudson, Mandan/Hidatsa, of the Columbia River Inter-Tribal Fish Commission, which is comprised of the Nez Perce, Umatilla, Warm Springs and Yakama tribes. ''There was no rationale for taking a qualified center and giving it to someone else.''

The 9th Circuit Court ruled Jan. 24 against a decision by Bonneville Power Administration to close the Fish Passage Center - to which it contributes $1.3 million a year - and transfer its functions to the federal Pacific States Marine Fisheries Commission and the Battelle Pacific Northwest National Laboratory.

The transfer of functions was proposed in a report accompanying the U.S. Senate's 2006 Energy and Water Appropriations Bill.

In its ruling, the court wrote that BPA's decision was ''arbitrary, capricious and contrary to law.'' The court ordered BPA to ''continue its existing contractual arrangement to fund and support the [center].'' The ruling also holds that BPA cannot rely on congressional report language to circumvent the requirements of the Northwest Power Act.

In an announcement on its Web site, BPA said it is reviewing the court's decision and evaluating its options.

''We're disappointed the 9th Circuit Court didn't accept BPA's multi-faceted rationale for its decision to transfer functions critical to salmon and steelhead survival from the Fish Passage Center to the Pacific States Marine Fisheries Commission and the Battelle Pacific Northwest National Laboratory ...

''We want to be clear that this issue has never been about whether these particular fish mitigation efforts are important. They are. What became an issue in this case was how these functions could best be carried out for the region.''

Hudson said the court's decision protects a trusted, independent, non-political scientific research center that has an established 25-year working relationship with the First Peoples of the Columbia River basin. The center has an oversight board consisting of representatives of states, tribal governments, fishers, irrigators and other stakeholders. He said it was unclear what kind of oversight there would be if the functions were transferred to another agency.

Oversight concerned the tribes of the inter-tribal commission, whose stewardship of the basin's rich resources dates back to time immemorial - and whose rights to fish in this region are retained in an 1855 treaty.

''The center has a meticulous record of meeting the data needs of fisheries co-managers,'' said Nez Perce Chairman Rebecca Miles. ''It is a vital and valuable public resource.''

''This is a great win for the Yakama Nation and all people working hard for science-based salmon restoration,'' said Yakama Chairman Lavina Washines. ''This ruling reaffirms the authority of the Yakama Nation and other regional sovereigns in defining, crafting and implementing salmon recovery.''

The Yakama Nation was a lead petitioner in the case; Tim Weaver was legal counsel.

For more information about the Fish Passage Center, visit www.fpc.org. For more information about the Columbia River Inter-Tribal Fish Commission, visit www.critfc.org.