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Overhaul of Columbia River Operations Needed by Judge Malcolm Marsh, Federal District Court of Oregon Idaho Dept. of Fish & Game vs. NMFS, 1994

A Federal Judge rejected the National Marine Fisheries Service's biological opinion that
Columbia River hydroelectric system operations posed "no jeopardy" to salmon.

I find that NMFS's selection of the '86-'90 baseline is arbitrary and capricious because the agency failed to consider relevant facts such as the drought condition and low run numbers of the species during the base period. NMFS also failed to articulate a rational connection between the facts, circumstances and myriad of factors contributing to the decline of the listed species and the choice of a standard by which to measure future success against. Instead, NMFS focussed on the system capabilities tending to the status quo rather than stabilization of the species. Finally, NMFS failed to conduct a reasoned evaluation of all available information when it adopted a standard which was based upon an undesirable period of years of the listed salmon. . . .

Based upon these results, NMFS concluded that 1993 FCRPS [Federal Columbia River Power System] operations were "expected to result in a meaningful decrease" of 2.5% to 11.4% in mortality of spring/summer chinook relative to the base period and a "meaningful decrease" of 5.1-8.9% in mortality for fall chinook relative to the base period. In addition, NMFS noted that the 60-70% probability of achieving 1990 population levels for spring/summer chinook by 2008 represented a "reasonable certainty" of stabilization. Based upon these findings and conclusions, NMFS issued a "no jeopardy BO [biological opinion] on May 26, 1993 . . .

Given the admitted high degree of uncertainty in the jeopardy analysis, there is no rational explanation for defendants to disregard only the low end, worst case assumptions. Further, the government offers no explanation for its failure to consider in-breeding and the "extinction vortex" as additional risks undermining confidence levels. IDFG and Oregon point to weaknesses in the BPA model results which might have supported dropping high range assumptions. Had NMFS not discounted the low range assumptions, the confidence levels would have been approximately 50% for spring/summer chinook instead of the 60-70% cited by NMFS in its conclusion . . . .

I find that NMFS arbitrarily and capriciously discounted low range assumptions without well-reasoned analysis and without considering the full range of risk assumptions . . . .

Federal defendants are under no legal obligation to listen and respond to salmon plans from every corner of the Northwest, but the ESA does impose substantive obligations with respect to an agency's consideration of significant information and data from well-qualified scientists such as the fisheries biologists from the states and tribes. See 16 U.S.C &1536(a)(2), ("Section 7(a)(2)") (each agency "shall use the best scientific and commercial data available") . . . .

NMFS has clearly made an effort to create a rational, reasoned process for determining how the action agencies are doing in their efforts to save the listed salmon species. But the process is seriously, "significantly," flawed because it is too heavily geared towards a status quo that has allowed all forms of river activity to proceed in a deficit situation -- that is, relatively small steps, minor improvements and adjustments -- when the situation literally cries out for a major overhaul. Instead of looking for what can be done to protect the species from jeopardy, NMFS and the action agencies have narrowly focussed their attention on what the establishment is capable of handling with minimal disruption.